Why Not Expand the Pie?

Tonight's blog post is courtesy of Kairi Smith Gure, who is our Associate  in our Lawrenceville office.



http://www.allfamilylaw.com/CM/Custom/Attorneys.asp

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I am in the process of earning a masters degree in the Science of Conflict Management.  I am in my first semester of a four semester program and I have already begun to view most of life’s experiences as a series of negotiations, some simple, some complex.

In my negotiation's class we are learning about different types of negotiations.  Before a couple of weeks ago I really didn’t think that there was more than one way to negotiate.  I thought, like most, about negotiations as the classic exchange where both parties have competing interests and each gives up as little as possible and, in a best case scenario, each side walks away with 50% of what they wanted.  Both parties are usually leave the negotiation disappointed that they didn’t get more.  But, in some cases, if one party was more savvy (or conniving) than the other party, they are able to “win” and walk away from the negotiation with more than 50% (or maybe all) of what they wanted.  This is what I have know come to know as Zero Sum negotiating.

Zero Sum negotiating works on the idea that one party has to get less of what they want (or need) for the other party to get more of what they want (or need).  When you are zero sum negotiating you are working with a “fixed pie” meaning that you are focused on the idea that there is not enough to go around and, in order to “win,” the other party has to “lose”.

I propose that Zero Sum negotiating, while definitely the way to approach many negotiations, is not the best fit for resolving most of the conflicts that take place in realm of Family Law litigation.  Integrative negotiating would provide parties with more satisfying, durable, and successful agreements, bringing them one step closer to resolving the family conflict that brought them to court in the first place.

Integrative negotiation is based upon the idea that if both of the parties approach the negotiation with the thought that they can both “win,” the focus of the negotiation will create an agreement that achieves the goals of both parties.  Ideally this would happen because the parties could think outside of the box and come up with creative solutions to meet everyone's needs and/or goals.  This process would in turn “expand the pie” so that there was enough for everyone.

I know that emotions run high for the parties when dealing with Family Law conflicts because the stakes are generally very high.  As I work with my clients I do my best to facilitate an approach to their negotiations that “expand the pie,” so that long after the day the agreement was created and emotions are no longer raging, they are still satisfied with the outcome.  To me this it what it means to “win”.

Kairi Smith Gure

Paperwork

The life of a family trial lawyer is not all glitz and glam, high stakes drama in the courtroom and high impact negotiations over latte's.  Sometimes we family trial lawyers have to do paperwork.

And I'm not talking about brief writing paperwork.  That can be gruelling and thrilling all at the same time.  Making a written Motion, preparing a brief, researching the law can captivate your mind like little else.  Your thoughts can narrowly focus as you craft your argument.  The turn of a phrase, the exact case to make your decisive point can be exhillarating and keep you on the tip of your toes and edge of your seat.  Your brief can feel like a work of fine art, to be appreciated by the known world, much like that kid in Christmas Story imagines his Red Rider theme will be appreciated by his teacher.

No, I'm not talking about anything so laudable.  I'm talking about paperwork like catching up on reviewing discovery responses and writing letters in response to other letters and pouring over contracts for vendor services.  All the stuff that you could appreciate as a needed respite in a quiet office, but after the fast pace of trial life, seems more like watching paint dry.

And that was my job today.

It's necessary work.  The pillars of litigation must be placed before the contest of court begins.  And it's productive work.  As you know from reading this blog, more often than not cases do not go to trial, they get settled.  I had one opposing counsel call me today to thank me for the very professional tone of my letter and trusted that it would prove a turning point in working toward a resolution for a divorcing family.  Of course, she then asked for a continuance from the rapidly approaching trial.

The time spent in the office while working on such paperwork helps me reacquaint with the staff and touch all the matters that are not so close to resolution as to require my hours before a Judge.  This time spent in the office allows me to remember how much I enjoy Amy's coffee and the camraderie of the paralegals and support staff.  It allows me to admire the way the paralegals manage all of the matters, the clients with their day to day needs and opposing counsels who cannot gain my immediate attention because I'm off arguing something in court.

So, the paperwork can be drudgery, but it can also be a breather.  A breather with a lot of coffee thrown in for good measure.

And tomorrow?  High stakes mediation.

Michael Manely

The Gwinnett Mediation Process - Behind Closed Doors.

Tonight's entry is brought to us by Senior Associate, Stephanie Steele.
http://www.allfamilylaw.com/CM/Custom/Attorneys.asp

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Earlier this month, I wrote about the steps leading up to mediation. Today, let’s take a look inside the mediation room...


Once both parties and their attorneys sit down with the mediator, the first order of business is to go over the guidelines for mediation. Some of the guidelines are:

a. Information shared during mediation is confidential and privileged to foster open and honest communication and negotiation.

b. Your mediator will not disclose any information learned during the mediation without the express permission of the parties. Confidential information you share in a private meeting (caucus) with your attorney and the mediator will not be divulged to the other party or attorney without your consent.

c. The exception to this rule is that mediator is obligated to report crimes that occur during mediation, imminent threats of bodily injury or abuse to a child or a party and any such other matters the law requires the mediator to report.

d. You cannot call the mediator as a witness in your case, if the case goes to trial. You cannot subpoena any written materials developed for or in the course of mediation.

e. The mediator’s role is to assist the parties in reaching an agreement, not to give legal advice. Your attorney is there to provide legal advice.

f. In order for the mediation process to be successful, all parties need to participate in good faith and work toward resolution of the issues.

g. Payment of the mediator is due at the close of the mediation session. Prior to mediation, your attorney should inform you of the mediator’s hourly rate. Usually, the parties evenly divide the mediator’s fees. However, alternative arrangements may be made in certain circumstances.

Usually, after the mediator and parties review the guidelines for mediation, each attorney will give an opening statement outlining the issues in the case. The attorneys may make an opening settlement offer. Alternatively, the mediator may meet with only one side and then with only the other side to get an understanding of what the issues are and what each side is willing to offer in settlement.

Mediators typically relay offers of compromise to the other party in the case, offer ideas regarding possible counteroffers, and assist you and your attorney in analyzing the settlement offers and counteroffers. When the mediator or one of the parties believes there is nothing further to be gained by the process, the mediation will be ended. The time spent in mediation varies, but generally lasts from two to five hours.

At the conclusion of mediation, the mediator has both parties sign a document stating the mediation ended in an impasse (no agreement), there was a partial agreement or there was a full agreement reached.

Sometimes we reach a full agreement, sometimes a partial agreement and sometimes we need the Court to decide the issues. If an agreement is reached at mediation, the mediator will often hand write the main areas of agreement. One of the attorneys will then draft a formal agreement for both parties to sign.

You should expect the formal Settlement Agreement to include more than just what was agreed to at mediation. There are a number of standard legal provisions in common use by attorneys that will be included in the formal Agreement, even though not specifically addressed at mediation.

If there is a provision you don’t understand, ask you attorney to explain it. The Agreement binds you and you should fully understand its impact on you and your case.

Mediation is an informal process that very often results in full resolution of cases. You should think of it as a great opportunity to resolve your case without further court intervention, higher attorney fees and more energy and time invested. Even if you don’t reach an agreement, you and your attorney will gain valuable insight into the goals, strategy and evidence of the other side. This will enable you and your attorney to better prepare for the final hearing.

I have often heard judges say that the parties know their case best. An agreement you reach with the opposing party will be more tailored to your specific situation and will be more satisfying to all parties involved than any Order the court could devise.

Hopefully, demystifying the process will help you focus on working through the issues to reach a mutual agreement tailored to fit you.

Stephanie Steele

Gwinnett Mediation Process – What is it? How do we get there?

Tonight'g blog post is authored by Stephanie Steele, Associate and Supervising Attorney for Gwinnett County.  Click here to
learn more about Stephanie.

You may have heard the phrase “Alternative Dispute Resolution” or “ADR”.  This simply refers to a variety of methods used to resolve legal cases without a Judge hearing and deciding the case.

As the Gwinnett Superior Court ADR’s website aptly explains, “There are three primary processes [of alternative dispute resolution] available.  Mediation, the most requested method of ADR in Gwinnett County, is a process in which a neutral third party facilitates settlement discussions between parties in conflict.  Case evaluation is a process in which an experienced attorney gives advice on the strengths and weaknesses of each party's position and may make an assessment as to how a judge or jury might react in the case.  Arbitration is more similar to a trial.  The arbitrator issues a decision on the case following an abbreviated hearing under informal rules of evidence.”

In family law, we use mediation almost exclusively as an alternative way of resolving cases.  In some Metro-Atlanta counties, you are required to attend mediation before the court will allow you to schedule a hearing.  In other counties, it is an optional process.  In still other counties, such as Gwinnett, the Judge decides whether domestic cases assigned to him/her must go to mediation prior to a hearing.

Once you know your case will go to mediation, the next step is to select a mediator.  Every Metro-Atlanta county has a list of approved domestic mediators.  These mediators are often, but not always, attorneys with at least 5 years practice in domestic cases.  They are all trained extensively in conflict resolution.  Don’t be fooled, though, as with most professionals, not all mediators are created equal!

In selecting a mediator, rely on your attorney’s advice.  She or he knows you, your case, the opposing attorney, possibly the opposing party and the mediator.  When choosing a mediator, it is important to keep in mind the personalities and proclivities of each person who will be involved.

For example, if you are a father seeking primary custody of your children, you probably would not want to use a mediator who advocates mothers obtaining primary custody.  Another example would be if you are a shy person, it may be difficult to work with a mediator who has a very strong personality.  Again, though, it depends on the individuals involved.

If the parties cannot agree on a mediator, the Judge will assign one.

When you arrive for mediation, check in with the friendly folks in the ADR office and let them know you’re there.  They will wait for both attorneys, both parties and the mediator to arrive and then lead everyone to a private room for the mediation.

Later this week, I’ll post another blog explaining what exactly goes on behind the closed doors of mediation.


For more information on Gwinnett County’s ADR processes, visit their website at Gwinnet County ADR


Here are a few other helpful ADR websites: 
Cobb County ADR
Fulton County ADR
DeKalb County ADR