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Practical Tips for Presumptive ADR Participants: Five Do's and Don'ts for Pre-Mediation Statements from Mediate

3/24/2021

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Michael Lodge, NCPM, Nationally Certified Mediator  www.lodge-co.com
I am sharing this article on the do's and don'ts of mediation.  I give this lecture a lot to mediation clients.  Excellent article and good to share to you who are considering mediation.

by Rachel Gupta from MEDIATE newsletter
March 2021
In light of backlogs resulting from closures due to COVID-19, many courts are turning to presumptive ADR programs.  As a result, mediation has become, more than ever, a necessary alternative to litigation.  Many lawyers and clients, however, are less experienced with developing mediation strategy, which in turn impacts the potential for the parties to reach agreement. For example, mediation statements are a critical opportunity for parties to educate the mediator and help her prepare for the day of mediation.  Oftentimes, lawyers do not use this opportunity as effectively as they could. The most useful mediation statement is one that: helps the mediator understand why the parties are where they are; what issues need to be resolved prior to reaching an agreement, and what is important to a party in any negotiated resolution.  The following are five do’s and five don’ts to keep in mind when drafting a pre-mediation statement.   


Five Do’s for Pre-Mediation Statements:
  • Do provide the mediator with sufficient history to understand who the parties are, their relationship, the nature of the dispute, and the procedural status of any litigation.  
Tell the mediator the relevant facts necessary for her to understand what has transpired. She also needs to be aware of any events or legal rulings that have impacted or will impact the value of the case.  Also tell the mediator of any ongoing relationship or business objectives between the parties. For example, tell the mediator if the parties are still engaged together in some business capacity or if there is the potential for future business opportunities. Similarly, if there are other disputes or litigation pending between the parties, the mediator should know this to understand where the current dispute fits within the context of the larger relationship.


  •  Do identify any gating issues that need to be addressed in order for the parties to resolve the dispute.  
Gating issues may or may not be the same as the legal issues that a judge or jury will determine at trial. They also may not be directly at issue in the case at all, but nevertheless, are necessary to address in order for a party to reach an agreement. In terms of the former, if there is a legal aspect of the case on which the parties completely disagree, and this has a direct impact on the quantum of damages at issue, educating the mediator is critical.  (You may also want to consider seeking an evaluative mediator who can provide a third-party neutral opinion on this aspect of the case.)  For example:  even if the parties cannot agree to the total damages amount potentially available at trial, it may be useful to identify and try to agree on the types and ranges of amounts of various categories of damages that the plaintiff seeks.  In an employment case, this could involve negotiations around the categories of compensation eligible to the employee (e.g., base salary, bonus, restricted stock units, etc.). Similarly, where a party is unable to reach a negotiated resolution without some condition, tell the mediator about this condition as early as possible so that she can determine when it should be raised with your adversary.  This could include non-negotiables such as the need for, or language of, a public disclosure, press release, or an employee letter of reference.  


  • Do tell the mediator “why” your stated positions are what they are.  
In other words, what interests must be met in connection with any negotiated resolution? This could include concerns about a company’s stock price, liquidity, wherewithal, copycat suits, or other interests that impact the party’s evaluation of any potential agreement. Oftentimes, impasse results because the parties fail to appreciate and understand the reasoning behind their adversary’s position. While sometimes these reasons need to remain confidential from the other side, sharing with the mediator can help her facilitate the negotiations. 


  • Do inform the mediator of your willingness to explore alternative currencies to a cash settlement.  
Identifying your willingness to consider alternatives to an all cash settlement does not automatically mean these alternatives must be explored. The mediator will not be making proposals without your permission; however, enabling the mediator to understand the scope of available solutions optimizes her ability to assist you in developing options.  


  • When you have the opportunity to provide ex parte submissions to the mediator, do trust the mediator to keep the information confidential. 
Many lawyers worry about showing their hand too early to the mediator, but holding information back impedes the mediator’s ability to do her job effectively right from the outset.  The mediator will only share information with your adversary with your consent, and because your adversary has disclosed confidential information to her, she is likely in a better position to help you strategically play your hand at the right time.  


Five Don’ts for Pre-Mediation Statements:
  • Don’t regurgitate your memorandum of law from the motion to dismiss or summary judgment motion. 
While identifying important gating legal issues is necessary, arguing your case to the mediator is not since she is not making any rulings or issuing any orders.  There is no need to prove your conviction or that you are a good litigator, and the mediator already expects you to insist that your case is the better one.  Moreover, if a dispositive motion has previously been filed, the mediator can read the briefing and any relevant decisions if you think it is important for her to do so.  Thus, you can streamline your mediation statement to include only those facts and issues that are important to the negotiations.
  • Don’t make unreasonable demands as your opening position.
Mediation and litigation are two different processes and require different approaches and strategies. The mediator expects you to have conviction in your case, but legal posturing often becomes counter-productive.  When a party starts the bidding from a point that is hard to justify under objective standards, they can and should expect their adversaries to counter in turn. The resulting gamesmanship makes the mediation more difficult than necessary, creates more negativity, and can quickly lead to impasse.


  • Don’t make accusatory or derogatory statements about the other side. 
Keep things civil and collaborative.  Remember, the goal is to reach a negotiated resolution.  When you come in ready for combat, you are pushing the parties further apart.


  • Don’t insist your case is infallible.  
Instead, remain reasonable when presenting your chances of success at trial, risks and settlement range.  Again, this is consistent with the collaborative approach that helps maximize chances of resolution.


  • Don’t conceal important facts from the mediator.  
First, mediators know when something does not quite make sense or add up.  If you are hiding something, you are inhibiting the mediator from effectively facilitating the negotiations.  Inform the mediator of your concern so that the negotiations do not head in a direction where you find yourself backed into a corner. Second, if you have a smoking gun, let the mediator help you determine when to use it.  When lawyers try to keep facts or evidence in their back pocket for some later date in the litigation, they are conceding (likely too early) that the parties will not reach a negotiated resolution.    


Biography
Ms. Rachel Gupta has her own ADR practice, Gupta Dispute Resolutions LLC, where she serves as a mediator, arbitrator, and outside general counsel to small businesses.
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Keeping the Marital Home in Divorce and Pitfall for the Unwary

2/24/2021

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Keeping the Marital Home in Divorce and Pitfalls for the Unwary
by Mary Salisbury
Supporting Effective Agreement

Keeping the marital home in divorce and pitfalls for the unwary.

In most marriages there is a marital home and it’s often the largest, or one of the largest assets.  Particularly if there are kids, in divorce, one spouse often wants to keep the marital home.

There are pitfalls for the unwary in divorce as it relates to the marital home that can arise long after the mediation has been completed.  As mediators, we can provide the service of advising our clients so they can avoid these pitfalls that could create bitter feelings towards their ex plus end up affecting their financial life for years to come.
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  1. Being off the deed doesn’t relieve financial responsibility.  Without proper guidance, one spouse may agree to sign a quick claim deed to transfer the deed to the other spouse (the “house spouse”) pursuant to their settlement, without realizing they would keep financial responsibility without ownership interest. Unfortunately, most lenders will not allow one spouse to simply assume the existing mortgage.  If both spouses are on the mortgage, refinancing will probably be required to take one spouse off the mortgage.  No matter what the settlement agreement or divorce decree says, if a spouse’s name is on a mortgage, the lender WILL hold him or her responsible for the mortgage payments.  The mortgage will also continue to show up on both spouse’s credit report as an obligation which often keeps the spouse who wants a new house of his or her own from getting a mortgage, or for that matter, any loan they may need for other purposes.
 
  1. Refinancing may not be possible.  We know that money problems are a root to many divorces. It’s not uncommon for refinancing to not be possible.  While two incomes may have been enough to qualify for a mortgage to buy the marital home, one income may not be enough for the house spouse to qualify for refinancing.  It’s common for the mom to want to keep the home, but her income, even with support, may not be enough.  Also, refinancing comes with a cost.  Fees for refinancing can be 2-4%, interest rates may have increased and the credit score of the house spouse may not be good or may have gone down which in most cases, will make the overall cost of the mortgage higher.  

I’ve had more than one phone call from folks seeking help because their settlement agreement said the ex-spouse got the house and would refinance but that was not happening.  Meanwhile, they were stuck in an apartment, because they were still on the marital home mortgage.  Even worse, their credit was taking a hit because the house spouse was not making mortgage payments.  
 
  • It may take time for support to be counted as income for purposes of qualification. When the house spouse is depending on spousal support, child support or other payments made under the separation agreement to qualify for a loan, he or she may be surprised that a certain number of payments must be made both in the past and into the future to qualify for a loan.  The number of payments required will depend on whether a conventional loan or an FHA loan will be used.  With a conventional loan, Income from spousal support, child support or separate maintenance payments may be considered qualifying income if the documentation shows that the payor was obligated to make (and consistently made) payments to the house spouse borrower for at least the most recent six months and is obligated to make payments to the borrower for the next three years.  Evidence (documentation) is required.  With a FHA loan, if using a final divorce decree, legal separation agreement or court order, income from spousal support, child support or separate maintenance payments may be considered qualifying income if the documentation shows that the payor was obligated to make (and consistently made) payments to the house spouse borrower for at least the most recent three months.  If receiving voluntary payments from an ex-spouse, the house spouse borrower must provide proof of twelve months of timely payments.  In both cases, proof that payments to the house spouse are required for the next three years is required and evidence (documentation) is required.  (Note: These time period requirements may change but the important thing to keep in mind is that there will be a delay when qualification is dependent on support payments.)
 
As mediators, we do our clients a service by inquiring about the ability to pay a mortgage, explain these pitfalls to our clients and recommend that the house spouse get a commitment letter from a bank prior to finalizing the settlement agreement.   
 
  1. There may be unknown title problems.  Down the road, the house spouse may decide to sell the home and problems with the title may be discovered during the preparation for closing. Title issues have to be fully settled before a home can be sold, and the problem is common enough that 11% of closing issues revolve around title problems.  The house spouse is stuck paying for the costs related to clearing up the title. The best way for the house spouse to protect him or herself from an unwanted surprise is to perform a title search during the divorce process which costs about $75 to $200. Some of the most common title problems are:
    1. Liens:  Liens from back federal, state, or local taxes or unpaid bills to contractors, liens from previous owners, and liens in the form of judgments, which are court-obtained documents from unpaid creditors or a parent requiring child support. 
    2. Heirs of previous owners:  If the home’s previous owner passed away before selling the home, the house spouse could end up facing heirs that come forward claiming right to the property. 
    3. Public record errors:  A clerical or filing error may seem minor, but these can take quite a while to resolve.
    4. Identity Concerns: When people have common name, a homeowner may be mistaken for someone else who is facing judgment. For example, if someone in the community has the same name and is taken to court for back child support, the judge could mistakenly file a lien against the wrong property. 
  2. Costs of sale.  Sometimes one parent will want to keep the marital home for just a few years.  One common reason for this is to keep the kids in their home until they move out or go to college.  It may not occur to them that he or she will be paying for all of the closing costs on their own.   That’s big money and reason to consider selling the home now and splitting the closing costs or agreeing to share closing costs and setting an agreed upon date by which the house will be sold.
  3. Home insurance does not get changed.  Not updating homeowner’s insurance policies can come back and cost the house spouse thousands of dollars. It happens like this:

-The husband is insured and the wife is a beneficiary. (This is often done this way because a spouse has lower credit scores.)

-They get divorced and wife keeps the house. No changes are made to the policy.
-A storm happens and a tree falls resulting in a $6,000 repair.

-Wife goes to file a claim but because she is a beneficiary, the claim is declined or the money is sent to the husband because he still shows as the insured.

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Innovative Ways to Use Mediation (other than Dispute Resolution)

2/18/2021

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Michael Lodge, NCPM, CRTP
​Nationally Certified Professional Mediator

This is an excellent article on how to use mediation in other areas of business and life.  This is from Mediate online magazine.  I have been brought into business and personal issues that have not been disputes, especially in the corporate world and it's constant change.  Enjoy the article and think about using mediation in various areas of business and life.
by Jharna Jagtiani, Aanchal Gupta
February 2021
The mediation process is inherently flexible. Traditionally, it is used as a dispute resolution tool where parties can come together, call a timeout and reach a mutually acceptable solution. But in the time of a pandemic or even otherwise, there are several uses of the mediation process. Different situations and circumstances can bring out several issues that one might face especially when working in a group or dealing with other people in general. Principles or even the process of mediation can help figure out a plan or a strategy for the developments and help tackle any issue faced by the parties. 
Here are some instances where mediation can be used other than resolving disputes - 
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  1. Structural Changes or Changes In Organization – Mediators have often been engaged to conduct sessions when a business organization is looking to make changes. In the times of a pandemic, almost all the business organizations have suffered and need to adapt to the structural changes. They have suffered in most areas of their working, if not only in profitability and/or financial terms. New goals to dissolve, or split up, or reorganize the organization can be mediated. Issues with every individual’s situation can crop up in several matters due to the changes that need to be made as a result of the pandemic. Structural changes in the business organizations are fundamental changes. The pandemic has rendered these kinds of transitions/adjustments important, mediation can help the members to adjust to them in a better way so as to reduce any kind of friction and avoid conflict.

  2. Reality Check – Prevention is better than cure. Before a thought, opinion or disagreement can turn into an actual conflict, it is advisable to take regular mediation sessions like once every 3 months to gauge the possible conflict points in the workplace and put out the fire. Mediation is a safe space which can be used to address and discuss concerns without blaming any party. Mediation helps parties to gauge their situation and concerns that they may have with each other. It can be used as a way to avoid any dispute and get ahead of the situation. If there are any concerns or any problems, it can be addressed and solved. The aim of the mediation in this situation is to address the needs of the parties. The pandemic has created unusual circumstances for everybody. Mediation can be used by employees to address concerns with their employer, colleagues to address issues, partners to bring up any concerns, etc. The communication can be facilitated by the mediator to ensure that there are no kinks in the smooth transformation of the work process. These tough times have enabled.

  3. Estate Planning – People often spend a lot of money in engaging advisors for estate planning. Family relations are strained; blame game is witnessed by counsellors, litigation is stretched out for years, hatred is passed over generations and years later it ends but the question remains, was it all worth it? An issue common to all these cases is miscommunication or lack of communication all together. Mediation helps in solving this issue. With the involvement of multiple advisors and even attorneys, family members do not have a chance of talking about their positions and interests. The topics in such discussions are also strained because of the sensitivity of the issues involved i.e. death and money. Mediators can be cognizant to the emotions more than lawyers as they stand in a neutral position and they are not working for the interests of one of the parties. They can assist the beneficiaries and allow all the interests and positions to be laid out on the table. This can lead to mutual agreement and overall satisfaction without the matter being dragged on for years. The collaborative nature of the process ensures that there is no harm done to any stakeholder’s interests while preserving their relationship. The mediation process can ensure that the agreement concluded at the end of the proceeding is acceptable by all the concerned parties and this reduces the risk of malpractice claims against advisors and lawyers.

  4. Co-parenting – When parents are involved in a divorce, custody battles are common in these cases. This makes the relationship of the child and the parent bitter and often ends it completely. It is like a child divorcing one of the parents. However, to ensure that the child has both of the parents by his side more and more (ex) couples are now opting for co-parenting. To avoid conflicts and custody battles, parents opt for mediation. Mediation helps the parents divide the responsibilities, plan the finances, take care of the good environment needed for child rearing, etc. Co-parenting is a life-long relationship. The broken relationship of the parents also affects the child’s belief system. The child can lose faith in relationships, establish trust issues, and lose sense of family and companionship, when the child witnesses quarrelling parents. Co-parenting with the help of mediator can help establish a working relationship between the parents so as to ensure that the child’s mental health is not hampered due to their conflict. Planning and discussing the details of the life of the child will ensure that the child has the love of both the parents and none of them have to abandon the child because they could not work it out with the other parent. Even though there is no conflict about the children yet, mediation helps to avoid future conflicts in a divorce. It prevents the conflict of the parents to be projected on the children. The end goal of every parent is a good upbringing for their child and this can be achieved with the help of mediation.

  5. Customer Loyalty – An effective grievance redressal mechanism that has a speedy process can help build consumer loyalty. If the customer has any issues and the same is handled on the spot or with 24 to 48 hours, it gives the customer the sense of importance. It indicates that the organization cares about the customer and their needs and issues. Even though mediation is used when there is some kind of concerns, this process consequently helps in building loyalty. The customer knows that their issue will be taken into consideration, resolved and they would be compensated for the inconvenience caused as per the situation. Mediation gave them a sense of importance, increased their satisfaction from the service and ensured that they do not choose the many alternatives available in the market.

  6. Changes in modus operandi – If there are changes in the mode of working of any organization, it will inevitably lead to some issues. The new mode would require some learning, on-boarding, training, etc. This kind of transitions lead to issues and conflicts as dealing with every personnel and the new mode of working has different effects. With the working mode changing to online systems and work from home scenarios, there are several changes that a business organization needs to make. So even though there is no pre-existing dispute, a mediator can be engaged to mitigate these activities and discussions.  Every person will face an issue with changes around them; mediation can help mitigate these problems and prevents them from transforming into a conflict against the management. Mediators act as neutrals who convey the issues of the system from the side of the employee and the need of the new system from the side of the management of the company. These interest positions are aligned and solutions to help them are devised. More often than not different divisions in a company work together, prior to the pandemic they were set in a decided pattern but the pandemic necessitated to alter such patterns. Teams need to adapt to the new world and make new patterns to co-ordinate; employers can use mediators to bring together the teams.

  7. Wellbeing of the employee - In the pandemic, a working man has been affected the most. They are crunched with problems from work and their households. To ensure that the workflow is maintained and the well being of the employee is kept in mind, employers engage mediators to help the employees and themselves. The employee is as important to the company as the company is to the employee. One cannot function without the other. Any issue that the employee is facing would directly affect the work that they are doing in the organization. Hence, the problems of the employee are the problems of the business organization.

  8. Strategize – Mediators have often been brought in by companies to act as liaison between the management and the employees. Strategy moving forward is a matter of concern. When the management needs to introduced new changes in the working set up and/or when they need to set in a different strategy that has an effect on their employees; mediators have been brought in to facilitate such a conversation. The underlying interests and the positions of both the sides are brought to the table and a mutually agreeable step is taken. The business can only function if the employee works in consonance with the strategy and a strategy can only bear fruit if the right amount of work and dedication is put toward it.

  9. Brainstorming Space - More often than not different divisions in a company work together on a single project. A space of brainstorming ideas, exploring possibilities and arriving at decisions is easy when mediation is involved. It is beneficial especially where there are several people working together as a team or various teams/groups working together. Mediation can bring out a safe space for different stakeholders and enable quality discussions. Emotions often run high as individuals are passionate about their work and their projects; mediation can help accommodate them without such discussions leading to conflict. It can help create a space where people can agree to disagree and mutually acceptable conclusions can be found which ensures that several individuals can work together.

  10. M&A Transactions – When a merger or acquisition transactions takes place, there are several details that need to be finalized. There are several moving parts in the organizations that are merged or acquired and the finer details need to be hashed out so that a smooth transition can take place without a huge cost. The deal is carved out so the parties involved can achieve their goals; they would have certain expectations from the deal and would expect those to be met. However, in the finer details there can be several disagreements, to ensure that these do not escalate to a dispute and hamper the transition and/or the deal, mediation can be used. The parties involved can come to the table to finalize the gazillion details involved in the deal and ensure as smooth a transition as it can be. Concerns of shareholders, creditors and other stakeholders can also be addressed through mediation.

​Mediation is a voluntary, non-binding, informal process that helps the concerned parties to come to a table and talk about their concerns or conduct any negotiations that they need to. As effective as mediation is in resolving the disputes by deliberating upon the interests and positions of the parties, but it can also prove to be an effective tool when introducing new changes, strategizing, planning, etc. If we need to align interests of different people who are working together or need to collaborate, then mediation can help them find a common ground from the very start instead of waiting for a conflict and then resolving it. Mediation can also be a fast and economic way to ensure that costly conflicts and/or litigation don’t take place. The conflict does not only cost in terms of resolution but also causes lose in terms of the work and emotional costs are another concern. Mediation process will be able to help create a safe and friendly environment thereby reducing the mental stress that a person might go through in case of a conflict. 
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Mediation Of Construction Disputes

2/18/2021

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Michael Lodge, NCPM, CRTP
Certified Mediator - Hearing Officer
Email:  info@lodge-co.com
Website:  www.lodge-co.com
Providing mediation and business advisory services nationwide.
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Mediation should be used in construction disputes more.  There are issues that arise on almost every construction site that leads to a dispute.  It can be a change order that was not approved, billing for materials not part of your construction, over charges, construction quality issues, construction schedules and various charges for being late, warranties on the work and the list goes on.  Mediation provide both parties mediate and resolve disputes prior to going into a costly legal battle.

Here are some ways to prepare for mediation.

1. The role of the mediator
Mediation is geared to resolving the dispute. One feature is the chance to hold confidential discussions with the mediator. The opportunity to discuss issues with the mediator in private can often be a more appealing way of getting a point of view across rather than being constrained by what has been prepared.

Once the mediator has a grasp of what is driving the dispute then he or she can get to work. Mediators are independent and neutral. They will use their knowledge and experience of the law and construction to rigorously test what each party is saying and help parties decide on what terms a case might be settled.

Preparation is therefore geared to helping the mediator to help the parties with identifying the point at which one or more of the parties have a reason to settle: the point at which the benefits of reaching a settlement outweigh the alternatives.

2. Representation
Mediation is not adversarial in nature, unlike adjudication or court proceedings. Parties to a dispute can mediate their differences without legal representation. That said, legal representatives can and do serve a useful role in assisting the mediator, identifying the issues and advising their clients on settlement as well as the consequences of the alternatives.  If you have a grasp of the facts and feel you can mediate on your own, mediation allows you that opportunity.

3. Know the case
Knowing the facts is key to your opening statement to the mediator at the time of the mediation session. If you have all of the facts ready ahead of time it will provide the other side a clearer understanding of your dispute.  Prepare a “punch list” of items that need to be discussed, the costs associated with them.  If you have contracts provide that to the mediator so he has a better understanding on the relationship with the you and the other parties.

Clarification of issues and disclosure of documents before mediation meetings is an important part of the process. Mediation meetings can then be used to test issues once the parties have shared relevant information and settlement options explored.
 
4. Be prepared to negotiate
A dispute is seldom settled by trying to persuade the mediator that your case – and your bottom line – is the right outcome, but because one or more of the parties does not have a better alternative. This inevitably means you need to identify the point at which you will walk away from the mediation without a settlement. If that is less than the other party’s bottom line – what they are prepared to settle for – then the dispute will obviously be settled.

5. Be prepared to make hard decisions
An experienced mediator will test you as well as your case. Be prepared to listen to criticism. Consider that the mediator may try to help you rationalize your own case as well as giving a clue about the other side’s bottom line without breaching confidentiality. Parties often push back against hard questions from the mediator. Rather than push back, take the opportunity to reassess your own prospects of success.

6. Aim for settlement
As noted above, settlement rates are high. This reflects the fact that management of risk in dispute resolution is hard to achieve in more adversarial processes. The benefits of mediation are many and being familiar with how to prepare for mediation might just persuade you to consider mediation not as an alternative but as the norm.
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Separation, Parenting, and Communication

2/16/2021

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Michael Lodge, NCPM, CRTP
​Nationally Certified Professional Mediator
Business and Family Mediation
Phone:  305.824.2963
Email:  info@lodge-co.com
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Communication is the source of focused determination to make things work.  If you have no communication, you have nothing to resolve issues with.  In every separation or parenting mediation that I do, it is seldom to see civil communication between individuals.  Some individuals say nothing, and others say way too much that sets off an even greater fire.  The process of mediation is to help those to develop rules of engagement, ways to communicate so that civility outweighs the anger of emotionally charged individuals.  Not everything needs a book of information and arguments, not everything needs a response.  Use the 25 words or less rule and you will think before you speak, and you can control your tone.  The way we communicate creates conflict.  I know, I have heard and read it when in mediation.

There are characteristics of conflict that include the following:

Incomplete communication - one of the parties to the conflict did not hear the whole story, or didn't read the whole story as written.

Inaccurate information - one of the parties to the conflict had the wrong information or intentionally sent the wrong information.

Stress Overload - one of the parties to the dispute was confused, overloaded, or stressed.

Different viewpoints - the parties to the dispute see things differently; the parties may have different beliefs or values.

Limited resources - Neither party can have it all because there is not enough to go around.

Now communication can be resolved.  Sometimes it means going into family counseling to learn how to communicate, especially for those where their communication is doing damage to the children.  Communication and the words used creates a tension and stress in children, you may not see it because you are so focused on winning an argument.  Or your just too stubborn to look at the damage you are doing.  You want to be right; you think your way is the right way.  Instead of looking at other options, such as counseling, you choose to go in your own direction not realizing that your actions are creating a greater damage.  These types of people are very dangerous to the children in the family because they come second.  Children should always be the priority even if it means you giving something up.

When communicating with the other party, do not over complicate it.  Simplify and be clear on what you need to know.  Say exactly what you need to know, do not add so much to it.  Be simple and clear.  Remember, we are practicing the 25 word or less rule.  Keep it simple with the question or request and those responding - provide the information back with the 25 word or less rule.  Questions and requests do not need to be books.

The other issue is that facts rule.  When having a discussion stick to the facts of the issue, do not go back into the past and start bringing that up again.  As a mediator I do not need to know the history, I want to focus on the issue at hand and how we can resolve them.  And, drum roll, so should you.  Keep to the facts of the current issue.  You cannot change history no matter how many times you tell the story.  Going back creates anger alive.  Too many words make a mess, less words keep you focused on results.  Easy?  

When you are writing an email or text, or if you are using an app to communicate with, design a template for yourself to use.  Use it every time you communicate.  Let's look at an example:

TEXT OR COMMUNICATION TEXTS OR APPS (25 words or less rule)

Text or Email:  Can you give me a dates of when you need Bobby watched?

Receiver Response:  June 22 - 25.

Sender:  Ok, I confirm those date, Bobby will be at my home on those dates.


SERIOUS ISSUES VIA EMAIL__________________________________
Date:   Feb 16, 2021

RE:  Bobby

Goal of Email:  To learn more about the behavior issue at school and what needs to be done.

Issue:  I am concerned that Jack was punished at school for his behavior in the classroom with the teacher.  It is so very important that we address this issue together.  I understand that you responded to the school.

Follow Up Requested:  Please let me know what happened at school.  Also please agree to keep me in the loop in the future.  Through our communication app is fine.

I have reviewed the above before sending and have made every earnest effort to remove anything that could be considered a naked or veiled insult or unnecessary commentary.​

Kindly,
Your Name

Disclaimer:  No offense or insult was intended, either overtly, covertly, consciously or unconsciously, by any of the above.
_________________________________________________________

The shorter the communication the better, the more defined communication on important issues, and the tension will be less.  The more you read the angrier you become.  Write short messages, get to the point, and move on.  It should take just a few moments of your time.  If it is taking long, then you did not follow the 25 words or less rule and decided to go with a book that no one wants to read.  Short and to the point gets to result and you can move on with your day.

Got it?  Do it!  If you need help on mediation communication conflict, let me know.  Separation, divorce, parenting plans, all work only with good communication.  25 words or less rule.

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Family Mediation

1/20/2021

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Michael Lodge, NCPM, Nationally Certified Professional Mediator
​www.lodge-co.com

I found this article on family mediation and it is a good overview of the issues in the mediation and the process.  In the past few months I have seen a lot more family mediation sessions come my way, thus I am always trying to study the process and look for ways to improve it for families.  Family mediation is a sticky wicket sometimes and you have to understand the process in order to get results.  I found the following article very good and a good through process in presenting the family mediation issues.
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 Mediation - speak freely, listen, understand, then problem solve
Anthony Gold - United Kingdom January 19 2021

As ​#familymediationweek draws to a close, David Emmerson discusses mediation in more depth and looks at some of its advantages for families. Mediation can be a transcendental experience, especially with one of Anthony Gold’s 5 family mediators.

Family Mediation Family mediation is a voluntary confidential form of alternative dispute resolution. A mediator is a neutral and impartial third party who helps the separating couple reach a negotiated solution to their family problems such as the arrangements for children, finances, property, pensions and capital. It works because the mediator and the process itself encourages people to have a voice and speak freely. The mediator will also ensure that you listen to what the other person is saying, sometimes in a way you have not done before, so that you at least understand what their issues are. You do not necessarily have to agree with what the other is saying, but if you did then that would help, but it certainly helps to understand and that leads to effective problem solving.

Information is gathered and verified so that each person’s financial position is clear. Once this has happened, it is the role of the mediator to help fix an agenda of the issues to solve so that a fair and workable outcome is achieved.

Mediation has the advantage of being able to deal with issues relating to the children at the same time as dealing with the finances. In the court process, two separate applications would have to be made as the children and finances are never dealt with together in the court process which is often a considerable disadvantage, as well as very expensive and time consuming. Solving issues relating to the children are often connected to finance solutions too.

Mediation During Covid-19
Like everyone we are adapting our services to meet the problems caused by the pandemic and the good news is that mediation, in all its forms, is ideally suited to conducting sessions by Zoom, Teams or WebEx. Almost all of our work presently is online.
With online mediation it is possible to have all parties talking and seeing with each other at the same time but also to arrange for secure and confidential breakout rooms where the mediator can talk privately with each person in turn. Shuttle mediation works very effectively online because the mediator will deal just with one person at a time and therefore any past conflict that there might have been which can affect the confidence of the parties being on the same screen as each other can be alleviated very successfully.
Utilising online facilities means that documents can be shared and exchanged on screen to make the mediation as effective as face-to-face roundtable sessions.

Types of mediation
The most common form of mediation is where both are with one mediator sitting in a comfortable room where separating couples are free to discuss matters in a relaxed atmosphere. In some cases, co-mediation, where there are two mediators, can be beneficial because that can help in a case where there are complex dynamics. However, this naturally is more expensive. Shuttle mediation
This can be used where there are particular anxieties by one person with regards to safety or coercive and controlling behaviour. Here, both are in separate rooms and the mediator works between each room facilitating discussion. Such mediation frequently takes place on line and where each party spends time separately with the mediator.

Hybrid mediation
Hybrid mediation is conducted by lawyers who have been trained either by Resolution in the hybrid model or with the civil mediation model. Hybrid mediation is often used in complex family cases where there are significant differences between parents with regard to their children and child arrangements or in financial remedy cases where the use of other professionals such as accountants, independent financial advisors and divorce planners can be utilised very effectively. Hybrid mediation also enables the separating couple to have their lawyers with them for key stages of the discussions and the negotiations which can give necessary support, confidence and guidance in progressing proposals towards a resolution. All the delays that there are in the court process and the very high costs associated with taking challenging and complex finance and children cases through the courts, hybrid mediation offers an ideal solution to resolving disputes and utilising the talent and experience of experts.


Role of the mediator and the lawyer
The mediator can be , and often are, trained family lawyers but mediators cannot give specific tailored legal advice in mediation. They are able to provide key information about what the law is. Therefore, it is very important for each party to have the benefit of independent legal advice from someone like a Resolution accredited specialist, https://resolution.org.uk/find-a-law-professional/. Here, the specialist will listen and understand all of the background to the children and financial issues. The lawyer will then explain both what the law is, but also importantly how it applies to the individual person’s particular case, so each person is in a strong position to know how to negotiate in the mediation process. It is also helpful to keep in touch with the lawyer as the mediation process develops. Whereas family case law and statutes can be found easily on the web, the internet cannot tell you how the law applies to your circumstances. A good experienced lawyer can tell you when you can let go a position or demand or whether your case is strong enough to stick with something.

Safeguarding
The mediator would not approve a case as being suitable for mediation where there are relevant safeguarding and domestic abuse issues. Mediation is voluntary, and you cannot be compelled to engage in mediation. Mediators are trained to deal with an imbalance in bargaining power or indeed bargaining skills. Shuttle or hybrid mediation are extremely good methods of enabling mediation to work effectively in appropriate cases where there has been past domestic abuse.

Costs
The costs of mediation, even if you use a solicitor to support and assist you throughout, is very significantly less than the costs of a contested court process. The length of the mediation process varies but the number of sessions really depends on how the negotiations develop and also how complex the issues are. It is not uncommon for matters involving children and finances to be resolved in two to four sessions, which might be spread over a two to three-month period. This compares very favorably with a fully contested court process, which can often take 12-18 months.

Children
Naturally, both parents will say the children are the most important factor. In a court of law, the welfare of the children will be both paramount consideration in children cases and the first consideration in a finance case. However, parents can often have differing views as to what is best for their children and what arrangements should be put in place for the children to spend time with each parent. In mediation, it is important that the views of each individual child are taken into account. This can be done in a number of ways and one of them is for a mediator, who is specifically trained in children issues, to speak with the children individually on a confidential basis and the children’s views fed back into the main mediation. In many cases, this is not necessary but in certain cases it can be vitally important, particularly with children of a particular age and viewpoint. This does not mean that the children themselves are making decisions, but simply that their views, uncomplicated by the pressures of speaking with either parent, are known and taken into account.

In child arrangements, it may well be in difficult and complicated cases that interim arrangements need to be put in place and tested and then reviewed so a mediation process can be staggered, so there is a review after three or four months with a further session.

Using experts
Another advantage of mediation is that both can agree to bring in the expertise of a specialist to help resolve issues. See hybrid mediation above. This might be instructing a valuer to value a company, business, or properties. It could be bringing in a pensions expert to work out what the best way for both is to reschedule pension investments. It may well be bringing in an independent financial adviser who can help each person in a neutral way of fixing budgets which can be far cheaper than contested court maintenance proceedings. Other experts can include divorce coaches and therapists where one or both are finding the emotional side of separation particularly challenging.

Mediation is a very flexible process and the use of such experts, although adding to the costs, can be extremely beneficial. It is not necessary to use experts in every case.

Potential problems with mediation
If each person has not fully and frankly disclosed all information and documentation relating to the finances, then the mediation cannot proceed, but the mediator will make every effort to ensure that full disclosure is made as the alternative is invariably the other person issuing court proceedings where the disclosure is ordered by the court.

Mediation sessions at times can be intense, challenging and even upsetting, not least because these issues are invariably very important to both. However, the mediator will ensure that the sessions never get out of hand and that time is allowed for each to “recompose”. However, the tension that can be caused in a mediation is nothing compared with the pressure and anxiety that a contested court case can bring with the prospect of giving evidence, being cross-examined and someone else [a judge] making a decision about your children and your finances.
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Outcomes
Both research hand statistical information shows that most mediations resolve issues successfully and that the vast majority of participants are happy with the outcomes and the process.
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Looking After Our Mental Health As Small Businesses

12/31/2020

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Michael Lodge, NCPM, CRTP
Nationally Certified Professional Mediator
and Business Advisor
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If you like my podcasts, blogs and vlogs, please support me by buying me a coffee.
I have been in business since 1984 and in those many years, which ages me, I have owed several businesses at the same time.  And looking back at how I handled the stress I have applied during this pandemic of a virus.  So, what I am about to write and share with you is based on my own experience.  The mental stress that we all have gone through has been heavy on our shoulders, not knowing what will happen, being under lockdown and shutting down businesses that created a panic and is creating even greater mental stress.  

Being on the brink of losing everything that one has built is a cause created by government, not the virus.  Mismanagement of states and local governments has created a situation where they are forcing businesses to close, with no help from the government to allow them to survive.  The mental stress is huge for small business owners.

But the question is how are we dealing with it?

At one point in time I was handling several businesses at the same time.  I had a large tax and business consulting practice in Los Angeles, a nursing review school in the Philippines, and a healthcare staffing firm in Los Angeles.  To be honest I was juggling too many things at one time and I had to find a way to call my mind.  So, what did I do?

First, I found someone I could talk to.  My business partner at the time was busy with his clients, he was not available to talk to.  So, I found a person who had been in business for way longer than me to talk to.  He had been through it all before.  I would talk with him about once a week for about an hour and I was given the experience and time of a person who had gone through everything I was going through.  During this pandemic find a person you can talk to.  It is vital for you to be able to talk with an individual, get things off your chest. Get some fresh ideas.  We are social creatures, and we need that time with other humans to talk.  Find a mentor, advisor, priest, member of the clergy, a friend, a business owner you can talk to.  But find a voice so you can have a voice during a tough time.

Second, I decided to get up and do something different.  Travel at that time was an outlet, mini vacations of one or two days just to put the phone down and get in the car and go.  You would be surprised that my drives from Los Angeles to San Francisco up the coastline on the 101 was the best therapy ever.  In the lockdown period we experienced I could not use the mini vacation therapy, so I decided to do something different.  I learned how to cook and bake.  I studied every single YouTube video I could watch on how to cook.  That one hour a day that I spent in the kitchen turned off the news, the work, the stress, and I cooked.  I found an outlet and it worked.  I had the best lockdown ever and I handled the unknowns by focusing on what I needed to do and took the time off to get a breath of fresh stimulus (food and bread).  

Third, I got involved in groups.  You would be surprised at how many groups are out there on the world wide web taking on various issues in business.  I found groups that were doing things in podcasting, writing, using social media for business.  I heard their stories and we talked about various things to continue the focus on new things for our businesses.  During the lockdown I wrote two books and got them on Amazon.  I began working on my podcasts and its distribution.

Fourth, the most rewarding thing that I did during the pandemic and lockdowns worldwide was to talk to those hurting and confused.  I found out that many overseas foreign workers that were working in Dubai were in real trouble.  They needed someone to talk to.  Nurses and healthcare staff were working in medical facilities that provided housing for them; however, they did not think how that affected the health safety of the staff all living together.  They were coming into contact with patients that had tested positive for Corvid, but no one told the staff.  Then the staff who had just worked with the infected staff would go home to their housing unit, an apartment with about four people in it, and would bring the infection into the apartment.  This created a panic because they did not know which one of their housemates had been exposed.  I worked with the healthcare staff and came up with a housing protocol that started outside the door of the apartment and into the apartment so that it would limit the contamination.  I took their phone calls at night, heard their fears.  Many had lost their salaries; they were working full time, but their pay was cut in half.  Yet they were being exposed on a daily basis, so their fears and frustrations were running high.  Several days I offered a service where they could zoom into me and we would talk for 30 minutes.  They were provided an outlet to let all their stress and frustrations out.

So these four things I did reduced my stress because I kept myself busy doing new things in life that I had never done before.  The same practice I had used when running so many businesses, learning new things, talking to professionals in business, joining different groups, and trying to outlets, reduced my stress in my business history and worked during this pandemic.  The busier I made myself the more involved I became; my business stress was reduced.  The business stress was there but I looked at it with a fresh mind and approach.

Everyone in business has to go through a crisis at some point in their business lives.  Why?  Because it tells us how well you will do in handling a business  Now some of you have lost your businesses, but you can rebuild.  Don't ever give up on your business ideas, keep going.  You learned from the crisis and now you know what you have to do to survive the next one, and there will be a next one.  I have been through a business crisis where I thought it would never end.  Just remember, a crisis is just and event and all events end.

I hope that this helps some of you still dealing with the business stress.  It worked for me, but we are all different.  But the most important aspect is to find an outlet to talk to other people.  Just that one simple act can get you through anything.  As I have said before, we are these humans that need other humans.  Let me know if you have any questions, you can text me at my office at 818.252.5682 

Mental health is a growing issues in small businesses, but it can be managed by everyone working together.  If you need to talk - let me know.
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​Let us start 2021 with a new mental picture of what we can do to do great things in our business and personal lives.  Happy New Year!



  
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The End Of 2020 And You Still Have Nothing Planned For 2021

12/21/2020

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Michael Lodge, NCPM
Nationally Certified Professional Mediation
www.lodge-co.com

​Phone:  305.824.2963

If you like my podcasts, blogs and vlogs that I do, please support my work by buying me a coffee.  Thank you!
For the last half, a year I have been preaching to you on my podcast that it is important to plan.  We are about at the close of the year 2020 and I bet a lot of you have done no planning for your new year.  Am I right?

In my podcasts I have told you how much I believe in journals and keeping one.  2021 is about here so what do you need to do in your journals?  Let talk about it.

Call Your Tax Practitioner, listen there may be a few more things that you can do to reduce your tax liability, but you need to talk to your tax advisor.  You do not have much more time here.  Also, if you are a small business there have been tax changes because of the COVID-19 pandemic that may help you.  Call your tax practitioner today.  Over the course of 2020 I kept telling you on my podcast sit down with your tax advisor over the course of the year, or when there are changes in your tax status (Marriage, divorce, separation, etc.)  Get it done.

Get a journal - Keep a journal, when you write down your finances and goals for the new year you will be able to plan better, it become personal.  You take responsibility.  You must look at it every day in your decision-making process.  Get a journal, they are at every office supply store, Cary it with you, write down conversations, what was said in meetings or with family.  Get a journal!  Plan daily.

Create a budget, list all your projected income, all your living expenses (Including debt) and then minus your expenses against your income and see what you have left over.  This will allow you to see what cash is available at the end of each month that you can either pay down your debt or save (retirement account or other venue).  All of us are required to be good stewards of our financial affairs.  If not, we are just fools.  If you would like to have an excel version of a budget, I have made one for you - BUDGET

Wills and Trusts, Medical Directives, I was talking to a very long-time friend who are in their 60's.  I asked them both if they had put together a will, trust, and medical directives?  The answer, in their 60's was NO.  In life death can happen at any time.  Now I know you do not like to think about death, hear about death, or experience death.  But it must be talked about and planned for.  If you do not have a will, trust, or medical directive yet - get it done.  Do it in the first quarter of 2021.  No matter what age that you may be, get your life and financial affairs in order.  Sit down with an attorney and get this done.

2021, As of this time none of us know what Biden will do as President about business and individual tax policies.  All that he has said is that he will raise taxes.  Our planning must be conservative in how we spend our money in 2021.  Conservative spending and management are vital for 2021, no question about it.  If you look at the small business confidence it has dropped 2% since November.  That gives us a slight indication that even businesses are going to operate conservatively.  The bigger corporations and investment hedge funds are moving their money and capital offshore to friendlier tax countries with lower tax rates.  It happened with Obama and is now happening with Biden because we just do not know what is going to happen.  When you do not know businesses go to friendlier places.  Under the Obama administration businesses were put on pause because of the uncertainty.  We just did not know.  Easy decision - spend and act conservative in our financial affairs.

If you have any questions or would like to set up a 60-minute business advisory session please go to my online appointment center at:  https://calendly.com/mlodge/60-minute-business-consultation

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Social Media Ethics And Our Content

12/18/2020

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Michael Lodge, NCPM, CRTP - Nationally Certified Professional Mediator - www.lodge-co.com

All of us are using social media in some form or fashion.  We use it to talk to our friends and relatives, and some of us are using it for our business and even for our political agendas.  Political agendas have taken over all forms.  In fact, social media has now started to censor people content and sometimes shutting off accounts because of political content.  It has become a ruthless game by the social media giants and the freedom of speech, to outright lies and misinformation to support various political agendas.  

In November of 2020 millions turned off Facebook and Twitter because of their censorship.  A lot of people jumped over to Parler and MeWe and their membership grew by leaps and bounds.  To be honest with you I hate censorship.  The only words that should be eliminated are those of hate I was one that jumped from Twitter to Parler and it has been an interesting experience.  It seems that once people have their freedom of speech, they think they can put out any content that is not true, rumors, or pure nonsense.  This happened on Twitter also from all sides of left and right.  However, on Parler it is mostly right leaning conservatives or far far right individuals.  Even the known journalists have joined Parler and they are spouting off stuff with no backup or confirmation.  

Good example, one fox news host made a statement that Chief Justice Roberts had made a statement to another judge that he would never allow President Trump to be President.  However, the Fox host had no backup, proof, or statement from the person who heard the statement or their name, to back up what they wrote as their content on their page.  I challenged the Fox person on where it came from - no response.  There seems to be this feeling that once you have free speech it gives you the license to put out bad untruthful content.  

I will defend free speech or anyone, no matter what you think politically, however if you are going to put out nonsense, I am going to challenge you on your content.  In fact, that is part of free speech - to be challenged on the facts and truths of your content.  If you have a challenge as evil, then you probably should not be on social media because everyone has the right to challenge the content you are putting out there.  Check and balance is part of free speech.  The social media giants should not be screening out content (unless pure hate), that is our jobs as people reading this stuff.  Challenge the content if you feel it is not factual.  It does not mean you have to be a bully or and ass, just challenge the content in an ethical way.

All of us must be ethical in our content and in our responses to content.  There is always the question of what is right and wrong.  If it is wrong - challenge it.  Question it.  Put the writer of the content on notice that you feel their content is misleading or untruthful, ask for facts.  And when we write our content, we have got to be more thoughtful and fact checking of our own work.  If you cannot prove what you are saying - do not say it.  Have proof for everything.  

We are responsible for our content to make sure it is honest, and we must challenge content that we feel is not honest.  We can improve social media and hold people accountable for their content.  The same goes for holding all media outlets responsible for their content and reporting.  The age of the un-named source is over with.  Once you hear the reporter is using an un-named source, they are probably spreading their own political agenda and now real news reporting.  Hold them accountable.

2021 is going to be the start of a new type of content monitoring because it has to be you and me to challenge the content on social media and the mainstream media.  Let us be honest in our content and hold others to be honest in their content.

If you like what I am doing, please buy me a coffee and support my work.  Thank you!!
www.lodge-co.com
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Ethically Thinking, It's Not That Hard!

12/14/2020

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Michael Lodge, NCPM, CRTP - Nationally Certified Professional Mediator - www.lodge-co.com

Throughout this week I am writing and podcasting a series on ethics because it is time.  All around us we see unethical behavior through many different venues.  Media, politics, international issues, it is pounding on us through so many sources every day.  Even though we see this unethical behavior it does not give us a license to act and behave unethically.  It is our responsibility to be ethical.

Throughout my business life I have had people act unethical and have had to deal with unethical behavior.  In our lives we have good periods of time that we live happily and then there are times when an ethical crisis blows everything out of the water.  When someone creates a crisis, nothing to do with your professional work, the crises hurt everyone surrounding that individual.  If you have never lived through a crisis you will get your turn.  Be prepared for an ethical crisis, everyone must live through at least one.  When a crisis involves unethical behavior, that unethical act gets associated with you, even though you did nothing wrong.  People will point fingers, make assumptions, get angry and blame you, and the list goes on.  But, if you are ethically sound, you will make it through anything.  Ethics is a practice and not just a belief.  You must work at it every single day of your life in all that you do.

We do not get a license to be unethical just because we see unethical people and governments being unethical.  We must be ethically always thinking.  The thought process is involved in every decision process we undertake, and it is a hard job to do.  The temptations become too great that we yield and switch on unethical behavior.  We make the wrong choices to often.  

I love the quote from Henry Cabot Lodge, "It is never right to compromise with dishonesty".  He is right on the money.  Never compromise your ethics with unethical behavior, or those with unethical behavior.  You keep yourself accountable for your own ethically thinking process and you challenge those that push an unethical agenda to benefit themselves.

Ethically Thinking, It's Not That Hard
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    Michael Lodge is a Nationally Certified Professional Mediator specializing in business disputes, as well as family conflicts.  He has written three books and hosts an international podcast on IHeartRadio and other podcast media stations.

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