Pre-Divorce Mediation

We are now officially caught up on the articles from www.thesuttonlawoffice.com

November 20, 2011

Divorce is very often an extremely difficult and costly experience to endure, which is why many people look for any way to avoid the traditional approach to divorce.  Many wish to save money by filing an uncontested divorce.  In an uncontested divorce the wife and husband agree on all of the terms of the divorce at the very beginning of the process.  One spouse then usually hires an attorney to draft the necessary paperwork and file everything with the court.  Legal fees for an uncontested divorce usually begin at around $500.  In contrast, most simple contested divorces start at about $5,000 per side and can increase quite exponentially.  Unfortunately because the wife and husband must agree on all issues from the beginning of the process, an uncontested divorce is not an option to many people.  If the parties disagree about a complex issues such as visitation or a simple issue such as who will retain which car, they are out of luck. The traditional approach to divorce dictates that they each retain their own attorney, pay thousands of dollars in fees, and fight in court.

 Pre-Divorce Mediation may be a viable alternative for people facing the above scenario.  Mediation is a process where a neutral third party informally meets with the wife and husband and attempts to help them reach a negotiated settlement.  The mediator does not make a decision for the parties but instead attempts to facilitate communication, clarify interests, and generally work to create an environment of cooperation and problem-solving.  Mediation has a very high success rate and is the only form of dispute resolution that empowers the parties to craft the type of conclusion that they know will work best for them.

Mediation is not a new concept in the realm of law or divorce.  Most divorcing parties attend mediation.  Many judges even require mediation.  However, most divorcing parties do not attempt mediation until after they begin the traditional combative divorce process.  Typically spouses spend thousands of dollars to retain attorneys and those attorneys then fight over the contentious issues.  They file answers and motion.  They request the production of all sorts of discovery documents and then fight if those documents are not provided to their satisfaction.  In most jurisdictions the judge does not order mediation until after the first temporary hearing.

Pre-Divorce Mediation is an attempt to eliminate the above and save the parties time, energy, and costs.  In Pre-Divorce Mediation, the wife and husband meet with a mediator before anything is filed with the court.  Some people prefer to have attorneys with them at the mediation but others do not.  The Pre-Divorce Mediation session is similar to typical mediation sessions.  The mediator works to help the parties resolve their disputes through negotiation.  If the wife and husband reach a settlement, the mediator drafts an agreement which is then signed by both parties.  They can then take this agreement and other necessary information to an experienced attorney who can draft their legal paperwork and file the divorce uncontested. 

There are some things to keep in mind if you are considering Pre-Divorce Mediation.    It is important that you have a firm grasp of your financial situation and bring all important documentation with you to the mediation session.  If you do not have an attorney present it may be helpful to consult an attorney before the mediation, especially if you are unsure of your rights.  The mediator will not be able to provide legal advice at the mediation.  Finally, while a trained and experienced mediator can provide a lot of negotiating assistance even when people adamantly disagree, it is important that both parties are willing to at least attempt to negotiate in good faith.  If one spouse outright refuses to negotiate, mediation may not be helpful.

For most people, utilizing mediation at the beginning of the divorce process gives them the ability to turn what could have been a long and expensive process into a comparatively short and cost efficient experience.  If you would like to know more about Pre-Divorce Mediation and whether it is right for you please contact Adam Sutton at The Sutton Law Office.

Adam M Sutton

HP and Lexmark Toner to Go Up 19%

HP and Lexmark increasing printer toner costs up to 19%. Considering how much toner my small office runs through I am not very happy. I can only imagine the potential impact on larger law offices.

More at: http://www.primercom.com/Social_Media.html

The Child’s Choice: How Age of Election Works in Georgia

The Child’s Choice: How Age of Election Works in Georgia

September 20, 2011

Battling over custody of a child can be one of the most grueling, stressful, and all together emotionally draining experiences one can endure as part of a legal action. A custody battle can be a very long and complicated process that involves multiple court hearings and the services of various experts such as guardian ad litems and mediators. Today’s article focuses on one aspect of custody: the impact of the child’s preference regarding which parent he or she lives with.

Many parents believe that a child always has the freedom to choose, but that is not true. Georgia law is a little more complicated regarding this issue. It is almost impossible to discuss the impact of a child’s choice without first outlining the general rules regarding custody in Georgia. According to Georgia Statute 19-9-3 (a) (2), it is the duty of the judge to determine what is in the best interests of the child and to award custody accordingly. This is commonly referred to as the “Best Interests of the Child Standard”. Georgia statute 19-9-3 (a) (3) lists seventeen factors a judge can consider in determining the child’s best interests. These factors are also listed in the custody section of the Sutton Law Office’s Website. However, it is important to remember that this is a non-exclusive list and the judge has the freedom to consider almost anything he or she deems relevant. In short, the judge has very broad discretion in this matter.

While a child’s choice, often referred to as a child’s election, is not one of the seventeen factors, it does impact custody. The degree that it impacts custody depends on the age of the child. Georgia statutes 19-9-3 (a) 5 and 19-9-3 (a) 6 specifically address this issue. According to 19-9-3 (a) 5, a child that is at least fourteen years old can select with whom to live. The child’s choice is considered presumptive, meaning the judge will award custody based on the child’s choice with one caveat. The child’s choice must still comport to the Best Interests of the Child Standard. If a fourteen year old child wishes to live with dad, the judge will grant dad custody unless, after considering all relevant factors, the judge determines that giving custody to dad is not in the child’s best interests.

This is a slight modification of the longstanding Georgia rule regarding a child’s election. Prior to 2008, a fourteen year old child could choose with whom to live unless the judge determined that the chosen parent is unfit. Proving that a parent is unfit is often very difficult absent extreme circumstances such as domestic violence or drug abuse by a parent. The result was that a fourteen year old child almost always chose with whom to live even if it was not the best choice. In 2008, the Georgia General Assembly modified the law replacing the unfit parent standard with the Best Interests of the Child Standard. The new standard allows a judge to have more flexibility in determining custody. Proving that a choice is not in the best interests of a child is not nearly as difficult as proving a parent is unfit. However, this discussion should not be construed as a dismissal of the importance a fourteen year old child’s choice. When dealing with two similarly situated parents possessing equal parenting ability, a fourteen year old child will, in most situations, have the power to choose with whom to live.

Georgia law 19-9-3 (a) 6 addresses the preferences of children who are younger than fourteen. A child who is at least eleven years old but not fourteen can express his or her desire and the judge will consider the child’s desire as a factor in determining custody. However, unlike the rule governing a fourteen year old child’s choice, the desires are not presumptive. The judge retains full discretion to award custody how he or she sees fit pursuant to the Best Interests of the Child Standard. It simply adds the child preference as another factor for the judge to consider. If the child is younger than eleven years old, the judge will not consider the child’s preference.

For parents wishing to change or modify an existing custody arrangement based on a child’s preference, the age of the child is again an important factor. The side requesting to modify custody must show that a material change in circumstances has occurred warranting new intervention by the court. If the child is at least fourteen years old and desires to live with the other parent, the court will consider the child’s desire as a material change in circumstances and will re-evaluate custody. However, the child’s choice can only be made once within two years of the last custody determination. If a child younger than fourteen desires to live with the other parent, the court will not consider the child’s desire as a material change in circumstances and will not re-open custody.

The above is a brief overview of custody in Georgia and how a child’s election works. If you are dealing with these issues or otherwise engaged in a custody dispute, it is vital that you consult an attorney that can advise you regarding your specific situation.

Adam M. Sutton, Esq.

How to Negotiate Better in Three Steps Part Three

How to Negotiate Better in Three Steps Part Three

August 4, 2011

This is the conclusion of our three part series of articles on negotiating better.  To any new readers, you may wish to begin by reading part one and part two. Links to the previous two parts are located in the Articles page of the website.  To the returning readers, thank you for reading and I hope you found our negotiation series helpful and interesting.

Step three in our steps to negotiating better is collaborative brainstorming. We begin by looking at what is meant by the term brainstorming.  Brainstorming is the process where the participants in the negotiation actively try to develop possible resolutions.  Brainstorming is directly tied to step two – information gathering.  It is essentially the process where you use the information you gathered and attempt to craft a solution from that information.

Brainstorming is sometimes used in connection with creative thinking or the cliché “thinking outside of the box”.  While every attempt at brainstorming does not have to include unusual or outlandish ideas, remaining open to different ideas can move many negotiations towards resolution, especially if those different ideas grew out of extensive information gathering. Slightly changing the previously used automobile example, consider this scenario.  You wish to purchase a car from a neighbor.  The neighbor offers to sale the care for $7,500 but you can only afford $5,000.  There are two common options available to the buyer: You can haggle over the price or you can purchase the car from someone else.  However, it may be beneficial to consider other more unusual options.  Perhaps through information gathering you discover that his daughter is interested in learning how to play the piano and perhaps your husband teaches piano in his spare time.  Now you and the seller can consider a new option: he sells the car for $5,000 and your husband gives $2,500 worth of piano lessons to the seller’s daughter.  The seller receives the value he desires and the buyer receives the price she can afford.  Of course not every negotiation can work out this perfectly, but until you engage in information gathering and brainstorming you never know.

 The negotiation participants can attempt to develop solutions individually, but the best use of brainstorming involves a non-isolationist approach.  To fully utilize brainstorming, the participants should work together and attempt to create an atmosphere conductive to generating ideas.  This collaborative approach may be counter-intuitive to many people more familiar with the traditional approach to negotiation.  Traditionally, negotiation is considered a combative affair where each side uses the tools in his or her arsenal to beat the other side into submission while conceding as little as possible.  However, the most common result of this approach is that both participants are mentally and emotionally bloody from the fight and neither is satisfied with the end result.  Unfortunately, many people feel fighting is their only option.  They say: “Adam, I agree that working together would be better, but it will not work with my situation”.  In some cases that may be correct, but taking a collaborative approach regardless of the attitude of the other participant and using the proper brainstorming tools during the negotiation can often manage even the hottest conflicts.

It is important to personally commit to cooperative brainstorming regardless of the attitude of the other negotiation participant.  It takes two to fight. If you refuse to participate in the fight even when the other side acts in an inflammatory manner, you essentially pour water on his or her fire.  Therefore, it is helpful to have a good poker face and to not react when prodded.  Even if the other side began highly combative, your calm demeanor will often calm them down. 

Other brainstorming tactics commonly used in mediation will help as well.  Many mediators will facilitate cooperative brainstorming by building on commonalities between the participants and emphasize any negotiation success.  By focusing on what the parties do agree on, you build a sense of successful progression and foster future cooperation.  Many mediators will also facilitate brainstorming by outright asking each side to brainstorm together. However, many negotiation participants are reluctant to freely express ideas because they are concerned the other side will latch on to any idea listed.  Therefore, it is very important to stress that no one is committing to these ideas.  Once all of the ideas are discussed and evaluated, the parties may then decide what they are willing to commit to.  This process works effectively with or without a mediator.  The negotiation only needs one participant willing to act as facilitator and focus on building cooperation.

This concludes our three part series on how to negotiate better. The steps discussed here are extrapolations of Interest Based Negotiation, a process developed by the Harvard School of Law Negotiation Project.  If you would like to learn more about IBN, I encourage you to read Getting to Yes by Fisher, Ury, and Patton and you are of course welcome to contact me at The Sutton law Office with any questions, concerns, or feedback.