A LAW PRACTICE DEVOTED TO MORE PEACEABLE AND WHOLESOME PERSONAL AND FAMILY LEGAL TRANSITIONS

Welcome to the family and elder law and mediation practice of Alexandria Skinner, J.D. (located at 3924 Forest Drive, Columbia, SC).

This is a boutique practice devoted to “helping people tackle problems instead of each other.”™  xan dec 2014

This is a practice only for people who want to be fair to themselves and to each other in planning for or implementing personal and family transitions.  Whether parties need help finding what is fair or whether they want to implement an agreement they already think is fair, most clients coming to this practice are seeking help with:

It is said that if the only tool in your tool kit is a hammer, then the whole world looks like a nail.  Often, when parties are in conflict consult with an attorney, that attorney’s first response is to suggest the filing of legal papers.  Certainly, filing of cases in court (also called “litigation”) is an important and valuable tool for addressing conflict.  However, litigation is not the only tool utilized in this practice.   There are many tools available for resolution of conflict, some of which may be objectively better than a lawsuit, in a given case.  Parties are wise to consider all of the tools in the toolbox  before deciding which approach to use.

Sometimes parties file papers only to find that this action compounded their troubles (and cost) instead of making their situation better.  Each individual case is unique and deserves an approach tailored to the needs of the parties, not just a one-size-fits-all, knee-jerk response. The first step is always a consultation to discuss your needs, goals, and unique circumstances.  If your needs are straightforward, that’s great. If they are not, more sophisticated or less obvious options will be explored.

In this integrative style practice, options explored may include conflict coaching, negotiation, multiple forms of mediation (mediation is a term that refers to many different forms of conflict resolution and in this practice includes transformative, narrative, facilitative, and evaluative styles of mediation),  preventive legal planning, and also including lawsuits in appropriate cases.  Subject matter experts may be consulted, on a case by case basis, to ensure that all client needs have been considered and that negative consequences can be avoided to the extent possible.  The goal in every case is to utilize the entire toolbox in such a way as to meet the unique goals, needs, and values of the parties themselves.  An equally important goal is for remedies to be long term, sustainable, and cost effective.

Not every law or mediation practice is the right fit for every client.  To see if this is the right practice for you, please request either a telephone, internet, or office consultation, using the contact form below, or call 803-414-0185 to speak with someone.

TYPES OF LAW

FAMILY  LAW :

  • legal representation to obtain uncontested court orders in cases which have been mediated by other mediators
  • uncontested adoptions,
  • name changes
  • uncontested guardianships for children,
  • negotiation and drafting of prenuptial agreements (also known as antenputial agreements),
  • collaborative divorce,
  • contractual legal arrangements between long term partners and never-married parents (including LGBT couples)
ELDER LAW:

  • estate planning for middle class families,
  • care planning for elders,
  • planning for disability,
  • estate planning for blended families,
  • legal help for families facing elder care emergencies,
  • adult guardianships and legal actions to protect vulnerable adults or people with disabilities,
  • durable powers of attorney,
  • health care powers of attorney,
  • advance directives and medical ethics consultations,
  • representation in probate court,
  • guidance for guardians and conservators for vulnerable adults regarding compliance with fiduciary duties

WHAT IS UNIQUE ABOUT THIS PRACTICE?  

Small and Personal: My clients receive personal attention from me and from my staff.  You will never receive a bill for a postage stamp.

Integrative: My philosophy is to seek a solution that is going to meet all needs in a wholesome way, to the extent possible.  As an IACP certified collaborative professional, I fully support incorporating the wisdom of other, subject matter experts (as warranted) to come up with solutions designed to address the needs and goals of my clients in a “big picture” way of thinking.

Forward Looking: My philosophy is to seek solutions that are going to work in the long term and be healthy and happy for both the individual and the family.  Documents I draft are prepared with the goal of avoiding issues that can give rise to family conflict later.  My clients rely on me for professional guidance and advice, not merely advocacy for a position.

Nonadversarial wherever possible:  My philosophy is that families ought not have to engage in an adversarial process to settle family matters.  On the other hand, peacemaking does not mean to cave in either.  Conflict needs to be resolved fairly and, where possible, in ways that don’t rip the family apart at the seams.  I seek to empower clients, individually and as a team, to identify and implement solutions that reflect their unique and individual values and circumstances and which address the underlying causes or symptoms of the conflict.   In my practice, resources are channeled into finding solutions rather than fueling conflict.

Interest based:  I first help clients identify the underlying issues that are causing distress or which may give rise to problems in the future.  Then, I help clients identify wholesome, realistic solutions to those issues.  When parties work as a team to address or neutralize causes of conflict, rather than as adversaries seeking to gain advantage over one another, it is more likely that they will be able to find creative solutions which meet more of their underlying needs and interests.

Workable:  Ideally, people will be happier with their negotiated or mediated settlement than they would be with a solution imposed by a court after a grueling, adversarial battle.  Because of the emphasis on finding solutions rather than building walls, this approach also conserves family and elder resources, and family relationships can be strengthened rather than torn apart by litigation.  To ensure integrity of long term result, part of the process will include asking whether the negotiated solution is workable in the long run, not just whether it satisfies the immediate need.

Empowering:  The approach of a peacemaking lawyer also is  backwards from that of a litigating attorney.  In a typical divorce case, the very first thing the attorney does is to file legal papers asking a judge to make a decision in the case.  After this, settlement negotiations ensue.  My approach is the opposite.  My clients reach their settlement agreement before they ever file papers.  When papers are filed after agreement has already been reached, the case is uncontested and the judge is simply asked to review and approve the settlement.

Ethical:  I am also very clear about my role and my ethical obligations.  A mediator is neutral and does not represent either party.  An attorney is an advocate and cannot be neutral.  A mediator who says they can represent one party, or an attorney who says they can mediate, are both violating ethical standards of their professions.  I will wear one hat or the other, but not both.  This is discussed in initial conversations.   If I am working as an attorney in a case which needs a mediator, or vice versa, I will help arrange appropriate assistance from appropriate professionals.

Transparent:  I do not claim to the the “right” lawyer for every client.  Clients who want to be told what to do and who want to see the world in terms of black and white, who want to view themselves as “good” and the other side as “evil,”  will not enjoy my approach to law.  I cannot promise to be perfect, and I cannot promise to “fix” everything that is wrong.  What I can promise to do is to do my best to be competent and to know the law, to give the best advice I know how to give, to refer clients to others with more expertise when that is appropriate, to be honest with my clients, to be fair in terms of billing, and to earnestly work for the good of my clients.

WHO IS A CANDIDATE FOR A PEACEMAKING APPROACH TO FAMILY LAW?

Committed to Fairness:  Mediated and negotiated solutions for family and elder care issues are not appropriate for every case.  I only accept family law clients who are committed to finding fair and workable solutions to challenges that face families and elders.  I do accept elder law cases which may be litigated in probate court, because of the important value of protecting fairness to the vulnerable adult.   By limiting my practice to the niche areas of non-adversarial family law and protection of vulnerable adults, I am able to focus on quality and sustainability of results for people who care deeply about the long term vision for the future of themselves and their families.

Self Aware:  The clients who choose to work with me, and with whom I choose to work, are those who:  (1) understand the value of focusing on healing and wholeness in the long term, (2) understand the value of finding solutions that are fair, precisely tailored to their needs, practical, and sustainable, (3) are willing to pay a fair rate for those services; (4) agree to consult with consulting experts when appropriate (financial advisers, appraisers, psychologists and therapists, vocational rehabilitation experts, legal advisers); and (5) have a high level of insight into their most important goals and target solutions that reflect those values, rather than having solutions dictated or imposed by an outside third party.

LOOKING FOR A CHEAP LAWYER?

Focusing on a cheap solution to family and elder issues can be penny wise but pound foolish.  The consequences of poor decisions don’t just last a lifetime.  They can affect your family for generations, literally.

I spend quality time with every client to learn their values, goals, and circumstances, to help them carefully consider their options, and then to decide on and implement legal solutions which reflect those individual needs and circumstances.   Your conversations with me may involve difficult questions and hard answers.   This is because half baked, knee jerk, and temporary solutions that punt the hard decisions down the road six months are just as unwise for families as they are for Congress.  The most cost effective solution to a challenge is not necessarily the one that is “easiest” or the one with the lowest up front cost, but the one that will meet the parties’ needs in a sustainable and affordable way in the long run.

While it’s true that mediated and collaborative approaches do tend to cost less than litigation, the difference in cost  is due to effectiveness of the process and the solutions.  All emphasis is on finding workable solutions rather than perpetuating conflict and arguing.  Families tend to keep more money in their pocket overall, preserve relationships and ability to work together as families and as parents, and experience less need for future court action.  The investment in a peaceable divorce or quality elder care plan is an investment in a better future.  But please, don’t make the mistake of focusing on “cheap” when you think in terms of family legal solutions.   If you want a “cheap fix,” keep looking.   If what you are looking for, instead, is a fair and cost effective solution to a complex family issue that has legal dimensions to it, you may have come to the right place.

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FOR YOUR DIVORCE, DO YOU NEED A SHERMAN TANK OR JUST A TAXI CAB?

Imagine that the road to divorce is like getting from one side of New York City (married) to the other side of New York City (divorced). You’re not sure how to get there, so you need some help from someone who does.

Most people just go hire an attorney who files papers in court and proceeds with litigation to decide every issue which must be resolved in order to “resolve” the financial and parenting issues of the parties.  This is effective, but it might be a bit like hiring a Sherman Tank and a contingent of marines to guide your way.

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Elder Law is for Every Adult

Elder law is about more than old age. Elder law is about the planning and care that every person needs in order to be prepared for disability or illness.  Disability Planning 101:  Regardless of age, each of us must prepare for the worst.  “What are some of these needs,” you ask?  Every legal jurisdiction is different, and this article is not intended as specific legal advice.  Nevertheless, there are some common themes that everyone must think about if they want to ease the stress of some of  life’s worst case scenarios.
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What’s Your “Plan B”?

I highly recommend the book The Power of a Positive No: How to Say No and Still Get to Yes by William Ury.  (I’ve linked to the paperback edition on Amazon.)  I won’t try to review the whole book right now.  I just want to mention one concept that this book highlights that is crucial to negotiation.  Namely, the importance of having a workable “Plan B”.

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The Price For A Divorce

The first thing I’d advise someone seeking a divorce is to consider, “how you will pay for it?”  In addition to calculating how to run two households on a budget that has previously been used to run one household, another question relevant to the immediate question of divorce is, “How will you pay the attorney’s fees for the divorce?” Reducing the initial outlay of cost is one significant reason to choose mediation in your divorce case. Continue reading

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Elder Mediation

Whether you are an elder, or the adult child of an elderly person, mediation can help with family stress.  Continue reading

Posted in Elder Issues, Family Meetings and Elder and Probate Mediation, Guardianship & Probate Legal Actions | Tagged | 3 Comments

Why Consider Mediation?

Mediation is the use of a trained, neutral professional to assist parties in arriving at a satisfactory agreement.   One size does not fit all,  however.  A divorce mediation is different in style and content from a mediation to help a church congregation involved in a split.

The mediators in this practice have trained in multiple forms and styles of mediation, with some of the premier mediators in the USA.   Skinner maintains professional membership in the Association for Conflict Resolution and the Academy of Professional Family Mediators.   Depending on the situation and the needs of the parties, tools in the skill set of this mediation practice include narrative, transformative, evaluative, and facilitative approaches to mediation, as well as collaborative practice which incorporates the wisdom of neutral experts into the process.   Subject matter expertise of our mediators includes mediation for divorce and parenting issues, elder mediation, mediation for church congregations, mediation for school special education IEP meetings, community mediation, and facilitation of any type of meeting.

If you are considering mediation for a challenging meeting or decision of any type, please make contact using the form below:

 

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Estate Planning Is More Than Writing a Will

“Elder Law” is a focused area of legal practice that includes not just “estate planning” (legal documents that protect you and your family in event of “worst case scenario”) but also any legal action that is needed to plan, protect, or care for a vulnerable adult.   Elder law is one area in which an ounce of prevention is better than a pound of cure.   Everyone needs this sort of planning, sooner or later.

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A Lawyer for Blended Families and Special Needs Families

Families come in all shapes and sizes.  One size does not fit all!   My law practice serves blended families, families of special needs children, families formed in older marriages, and families bending typical stereotypes.  I listen carefully to your needs and help you plan pro-actively to avoid problems down the road.

SECOND MARRIAGES:  Candid discussions as well as financial disclosures prior to a second marriage will help parties reach agreement ahead of time about important issues.  The expectations and agreement of the parties can then be drafted into a prenuptial agreement (also called an antenuptial agreement).  The occasion of a new marriage is also a good time to revise estate plans.   Spouses married for a second (or more) time have a need to balance commitments and obligations to children and spouses from former marriages with their new commitments to a new spouse and any children that may be part of that new relationship. logo cropped sharpened

BLENDED FAMILIES:  Even when children from prior marriages are grown, emotional dynamics can remain complicated.  Equally important, however, at a certain age financing of possible old age care can become a serious concern.  Since spouses are financially responsible for one another, it is possible that remarriage could put life savings at risk for care of the new spouse, a result that can be avoided through a carefully drafted prenup.

SPECIAL NEEDS KIDS:  Your special needs child will grow up to the age of adulthood, but not every child is capable of becoming emancipated.  In such a case, parents need to engage in special planning based on the needs of your special family.

If you are contemplating remarriage, if you have concerns about balancing the needs of a “first family” and a “second family,” or if you have a special needs child aging into adulthood, a legal consultation would be a wise step.  To schedule an appointment, call 803-414-0185, or fill in the form below:

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Peaceable Divorce

Have you decided to end your marriage?  Do you just want to end it fairly, without going to war?  If so, you may have come to the right place.  The emphasis in this practice is on more peaceable divorce processes:  Mediated Divorce, Collaborative Divorce, and Uncontested Divorce.  This does not mean that corners are cut or that one side can be bullied.  The emphasis is on quality of result, sustainability, fairness, and cost-effectiveness.

Some qualitative reasons for non-adversarial divorce include preserving the ability to part as friends, preserving the ability to co-parent together, preserving the autonomy of the parties to decide their own post-divorce arrangements, and preserving assets for family use rather than spending them on court fights.

For a consultation meeting to see if a non-adversarial divorce process might be right for you, fill in the contact information below.  The fee for an initial consultation is $200.  The goal for the initial meeting is for you to learn your divorce options, to assess the process that might be right for you, and to help you chart your path forward.

When people get married, they are like two plants that become rooted in the same pot of soil.  Their roots and stems become intertwined and woven together.  The process of divorce is a bit like taking those two plants, that have grown together, and then separating them back into two separate pots. In this practice, every effort is made to  help separate the plants into two different pots once again, but in such a way as to try and avoid damage to the roots and to enable both plants to resume healthy lives independently from one another.

These two plants that were planted together have been gently separated, taking care not to harm the roots.

These two plants that were planted together have been gently separated, taking care not to harm the roots.

This approach is not appropriate for every case. Both members of a divorcing couple must explicitly affirm their commitment to being fair to one another.   If that commitment is present, processes and experts are available to help the couple reach fair solutions.   If one or both are not committed to principles of fairness, the judicial system will be needed to enforce those principles from the outside in.

There are many aspects to re-establishing identity as a single person after divorce.  There is emotional divorce (moving apart emotionally), physical divorce (moving apart physically), financial divorce (moving apart financially), and legal divorce (moving apart legally).   When all the components of divorce are examined, it becomes apparent that the  legal component of divorce is really just one aspect of what it takes to be divorced.  The bulk of the transition process involves business and financial decisions, shifting of living arrangements, and rearrangement of parenting time and responsibilities.

These two seedlings originally grew in the same spot. Their roots have been disentangled and now they will continue to grow separately.

These two seedlings originally grew in the same spot. Their roots have been disentangled and now they will continue to grow separately.

Who will decide these business and financial, living, parenting, and other aspects of divorce?  The goal of a non-adversarial divorce process is to empower the couple themselves to decide what arrangements work best for them.

If one uses the analogy of the plants with roots, the couple themselves figure out how to disentangle the roots.  There may be painful decisions, with some pruning and cutting necessary, but overall the goal of divorce mediation is to empower the couple themselves to find the best solutions overall for their family.  When both parties are committed to principles of fairness and want to be fair to one another, mediators have many tools to help parties make a mutual, voluntary decision about what is fair.

Parents who work together are also better able to provide a cushion for their children, reducing the effects their separation has on the children.  Parents choosing non-adversarial divorce have more flexibility to work out solutions that make the transitions as seamless as possible for their children.  Non-adversarial divorce doesn’t just shield children from conflict, however.  Many parents feel that choosing a more peaceable approach to a challenging situation actually creates a better role model for their children.  Parents choose not to model negative behavior.  Instead, they demonstrate to their children that even when disagreement is irreconcilable, two adults can work through conflict respectfully and fairly, and in a way that avoids harm to their loved ones.

 

The difference between a mediated divorce and a divorce that uses mediation as part of a legal settlement process involves a profound difference in paradigm.  The legal system is adversarial in nature.  Additionally, filing legal papers as a first step in the process automatically  asks a judge to make all the decisions for the parties.   Once a judge has been asked to make a decision, then the entire focus is on building a “case” to present to the judge.  The parties are no longer in control of their own decisions, lawyers are needed to manage the process, and costs escalate because of the nature of the process.  Mediation in this context is reduced to a settlement conference.

Choosing a non-adversarial paradigm, in contrast, keeps parties in control of their own decisions.  If the parties need help in reaching decisions or in deciding what is fair, a professional mediator has many tools to assist with this.  After a decision is reached on all the relevant issues, the legal process is only invoked to ask a judge to review the agreement for fairness, to ensure it is in the best interest of the children, and to finalize the order of divorce.

While it is impossible to say ahead of time what will be involved in final resolution of any individual case, overall the cost of a non-adversarial process is generally a fraction the cost of an adversarial, litigated divorce.  Cost is not the main reason to choose non-adversarial divorce, however.  The true benefit is the ability to find better solutions for the challenges facing the parties, as well as the ability to preserve whatever is left of the relationship.  These are especially important benefits when children are involved.  Par the parents will need to work as a team for many years forward to ensure the best future for their offspring.

Careful planning helps secure a better future

Careful planning helps secure a better future

 

To learn more about mediated divorce, call 803-414-0185 or complete the contact form below:

 

Posted in Collaborative Divorce, Divorcing and Parenting, Mediated Divorce, Resources For Peacemakers, Uncontested Divorce | Leave a comment

Estate Planning

A good estate plan does include a Last Will and Testament, but it also includes much more.

Anyone could become disabled, at any time, as the result of a freak accident.  Every adult, no matter what their age, needs legal documents which spell out who has authority to manage the person’s affairs or make decisions if that person does become mentally disabled.  The document that spells out the powers and responsibilities of the agent is called a Power of Attorney.

Although these documents are available “online,” they are complex, technical documents.   Sometimes “penny wise” is “pound foolish,” and using cheap forms off the internet may be one of those times.  A power of attorney should not be entered into without advice of an attorney.   Additionally, by the time a person really needs to rely on their advance planning legal documents (for instance, if a person is in a coma), it is too late to do it then.  This is because if a person is mentally incapacitated, he or she lacks capacity to execute legal documents.  This means that if a mistake has been made in a form obtained online, that mistake will likely not be discovered until a time when it is too late to fix it.

What then?  If a person becomes mentally disabled without a general, durable power of attorney that has been properly executed, sometimes the only solution is to procure a court-ordered Guardianship or Conservatorship.   The requirements of due process make these difficult to obtain, expensive, and time consuming for one’s loved ones.

A second category of documents that should be offered with every estate planning package is an Advance Directive (such as a Living Will), and a Health Care Power of Attorney.  Forms for these are also available online.  It is highly advisable, however, to obtain professional assistance in addressing the meaning of the decisions in the documents and also to ensure that the documents are validly executed.   These are another example of documents that do one no good if they are not properly executed and communicated to those who need the information.katri-Kytopuu-stairs-in-woods_thumb.jpg

It is true that not everyone will become disabled.  Not everyone will need to rely on these documents.  If that’s the case, great!  But failure to have them is like playing Russian Roulette.  You never know when or where disaster may strike, and these are documents that are critical to have when it does.

A professionally guided estate plan should also address special needs, such as special needs of blended families or needs of children with disabilities (who may benefit from a special needs trust).

Good, comprehensive estate planning, guided by a professional, is truly a case where an ounce of preventive planning is worth a pound of cure.

To discuss this more, please call 803-414-0185,  or use the contact form below.  (Please note that legal services are available only in the State of South Carolina.)

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Mediation with a capital M

Mediation with a small “m”   or Mediation with a capital “M,” and what’s the difference?

It’s a matter of style and paradigm.   Continue reading

Posted in Family Meetings and Elder and Probate Mediation, Mediated Divorce, Parenting Plans, Uncontested Divorce | Tagged , , , | Leave a comment

Do I Need A Prenup?

Marriage is not just an emotional and physical union — it’s also a financial union. Although the discussions that go with a prenupial (or antenuptial) agreement may feel uncomfortable, it’s better to have these discussions at the beginning of a commitment than to be surprised later.  By bringing these conversations to the open and encouraging frank discussion of finances and the values they reflect, a prenup can actually help ensure a better foundation for the future your marriage.

YOU SHOULD CONSIDER HAVING A PRENUP IF YOU FALL INTO ANY OF THE FOLLOWING CATEGORIES:

  • You already have children and/or grandchildren from a previous marriage
  • You already own assets such as a home, stock or retirement funds
  • You own all or part of a business
  • You anticipate possibly receiving an inheritance
  • One of you is much wealthier than the other
  • One of you will be supporting the other through college
  • You have loved ones who need to be taken care of, such as elderly parents
  • You have or are pursuing a degree or license in a potentially lucrative profession such as medicine
  • You could see a big increase in income because your business is taking off, or that garage band you play in has just gotten a contract with a big record company.

THINGS THAT CAN BE ACCOMPLISHED WITH A PRENUP

Keep finances separate:

  • Itemize assets and define what is separate and what is marital property
  • Define how future income will be allocated, will this be joint property
  • Define how future property acquisitions will be allocated, as joint or separate
  • Protect each other from debts accrued before or during marriage
  • Provide for children from prior marriages
  • Keep an inheritance separate
  • Define each of your rights if you were to divorce

Clarify responsibilities during the marriage:

  • whether to file joint or separate income tax returns and how to allocate income and tax deductions on separate tax returns
  • who will pay the household bills — and how
  • whether to have joint bank accounts and, if so, how to manage them
  • agreements about specific purchases or projects, such as buying a house together or starting up a business
  • how to handle credit card charges — for instance, whether you will use different cards for different types of purchases, what kinds of records you will keep, and how you will make payments
  • agreements to set aside money for savings
  • agreements for putting each other through college or professional school
  • whether you will provide for a surviving spouse — for example, in your estate plan or with life insurance coverage, and
  • how to settle any future disagreements — for example, you might agree to hire either a mediator or a private arbitrator.

WHAT ELSE YOU NEED

Complete Information:  The prenup negotiation process includes full disclosure of all financial assets and liabilities

Estate Plan: It is important for the contents of the prenuptial agreement to dovetail with your estate plan.  Marriage or remarriage is a time to review not only estate planning documents, but also investment accounts and titles to property to ensure that these are titled in a way that accurately reflects your intentions with regard to  ownership and succession planning.

Attorney:  In South Carolina, a prenuptial contract can alter significant legal rights that accrue as the result of marriage.  For this reason, the assistance of an attorney is essential.

If you would like to learn more, feel free to contact me for a consultation:

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Location, Location, Location: It’s Not Just For Real Estate!

A safe deposit box may not be the best place for important papers

A safe deposit box may not be the best place for important papers

Chances are, when you hear the words, “Location, Location, Location,” you think of real estate.   These are not the only professionals interested in location, however!  Your Elder Law and Estate Planning Attorney will tell you that the location of your important papers can make the difference between a care plan that is followed, and a care plan that is not followed.  If your loved ones don’t know where to find your health care power of attorney, living will, or estate planning documents, they won’t be able to use them in time of need.

Location, is not the end of the subject, however.  It doesn’t do any good to tell someone where to find your estate plan if no one will be able to easily access it. For example, if you put your plan in a safety deposit box, the bank is not going to let just anyone access it after you pass away. Even if a family member goes to the bank with the key, unless the bank has prior authorization to allow that person to access your box after you pass away the bank will turn him or her away. A court order will be needed to access the box.

To request a free copy of my checklist of 25 documents every person should keep in a safe place, or to schedule a consultation to learn more about estate planning or elder law needs, fill out the form below:

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Mediated Divorce vs. Divorce Mediation

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“Equus grevyi (aka)” by André Karwath aka Aka – Own work. Licensed under Creative Commons Attribution-Share Alike 2.5 via Wikimedia CoD

Mediated divorce is not the same thing as divorce mediation!  This article explains why.

The term “mediated divorce” describes a process in which a skilled, neutral mediator helps the parties make all the decisions they need to make and reach agreement about the terms of their divorce BEFORE DIVORCE PAPERS ARE EVER FILED IN COURT.   The term “divorce mediation,” as used by attorneys and the general public, in contrast, generally refers to a settlement conference held as part of a lawsuit, AFTER DIVORCE PAPERS HAVE BEEN FILED IN COURT AND JUST BEFORE TRIAL.  The differences in paradigm and process result in two creatures that are as different as a horse and a zebra.

Just as a zebra and a horse both have four legs and run, mediated divorce and divorce mediation both (a) involve use of a neutral mediator, and (b) can be used to arrive at settlement terms of your divorce agreement.  There, the similarity ends.

To understand why the rest of the processes are so different, one must first understand the basic issues and process involved in divorce.

Divorce has many legal aspects, but there are also many aspects of divorce that are more practical than legal. Many aspects of divorce involve changes that occur gradually over time.   Some of these aspects are legal, but most of them are not.  Most of the process of divorce includes separating and detaching emotionally, financially, and establishing two separate, independent lives once again.

Thus, the process of divorce involves separating and re-establishing boundaries, reshuffling of parenting plans and schedules, rearrangements of finances, re-titling of property.  If one were to draw a list of steps, it might include: Increase in emotional and physical separation or distance  -> A decision to separate ->

Following through on this decision by:

(a)  physically moving apart,

(b) separating emotionally,

(c) separating finances, figuring out how to support two separate households utilizing income that used to support just one,

(d) reaching a fair property settlement,

(e) reaching some sort of solution with regard to how to parent children  ->  and then …

(f) creating a new legal status that is “divorced” rather than “married.”

As you can see, Items (a), (b), (c), (d), and (e) listed here are not really “legal” issues per se.  They are practical issues with regard to deciding “what will the new arrangements be?”  The difference between “mediated divorce” and “divorce mediation” has to do with how these middle items are decided.  Will you decide, or will lawyers direct a process that disempowers you and places the lawyers and judge in charge of those arrangements and decisions?

This is why it is so important for people to understand the difference in paradigm.   In a true, mediated divorce, the Mediator will direct the process, but it is designed to keep the parties in control of their own decisions, applying their own values, to reach their settlement agreement.  Once this agreement is reached, then the last step is the legal part, to ask a judge to review and approve the divorce settlement for fairness and to grant the divorce on the appropriate legal grounds.  Now that the difference in paradigm has been exposed, what is the difference in process?

If a person goes to see an attorney and tells that attorney they want a divorce, the attorney likely will assume that the parties want a judge to decide most of these issues for them, particularly (c) through (e), and likely including the terms of (a).  The attorney most likely will, as a first step, file legal papers asking the court to decide these issues.  This legal paper, called a Complaint, creates a lawsuit which is set up as Party A versus Party B.  This is what is called a “litigated divorce.”  When someone serves or says they have been served with papers for divorce, the “papers” they are referring to is the Complaint and its accompanying paperwork.   This initial filing of a lawsuit sets the parties up as adversaries in a battle that is played out, ultimately, in a courtroom and which asks the judge to make the decision as to how all the issues will be decided.

A mediated divorce follows a different process entirely.

Mediated Divorce:  In a mediated divorce, parties hire a neutral mediator who guides them through discussions and factual investigations designed to help them understand the issues, know their options, and reach agreement on every single one of these issues voluntarily.  The mediator seeks to empower the parties to make their own, best decisions and reach authentic agreement, so that there is no need to ask a judge to decide their personal affairs for them.  The emphasis is on joint problem solving and on finding solutions that both parties feel are fair and sustainable for both parties and for the children.  After agreement is reached, a contract is drawn up which lays out the terms that have been agreed upon.   Only after those terms are agreed upon do the parties file papers and go to court to ask the judge to review their agreement and finalize their divorce.  The resulting court action is adversarial in name only.  The court system requires one person to file papers and be the Plaintiff, but after the terms of a divorce have been fully mediated and both parties are in agreement as to the terms of their settlement, there is nothing (or very little) that remains in contention.

When the parties use a mediator to arrive at the terms of their separation, this is called a “mediated divorce” (in contrast to a litigated divorce).  When the parties ask the judge to decide (using “litigation”), then it is called a “litigated divorce.”

Some may ask, “Why is a mediator needed?”  The answer is that a mediator is needed because most people don’t understand all the  issues that need to be decided.  Additionally, most people need some help from a neutral person to act like a referee and help facilitate communication.  (After all, if the parties got along perfectly they would probably not need the divorce.)

Litigated Divorce:  As soon as legal papers have been filed, the parties have already been placed into the adversarial mode of “A versus B.”   In approximately 95% of litigated cases, the parties reach agreement prior to going to trial.   Because the case is being prepared for trial, the lawyers (who are experts in the trial process) must manage the gathering and presentation of reliable, probative evidence to present to the judge.  The lawyers must also anticipate what evidence should be excluded from the trial.  After the lawyers prepare their case for trial, they use a creature called “divorce mediation” to negotiate a settlement.   A more accurate description would be to call this a mediated settlement conference, which is the term most mediators use for it.   A mediated settlement conference uses a neutral mediator to facilitate negotiations between the two sides of the lawsuit, both of whom are represented by attorneys in the negotiations.  The emphasis is on “settlement of a lawsuit,” rather than a process of exploration of options and working together to find a sustainable resolution.  The lawyers manage the mediation, with the mediator going back and forth with settlement offers. Much depends upon the negotiation style of the attorneys, as well as the fact that with many more professionals in the room the cost per hour is much higher.  Divorce mediations in the context of litigated divorce, therefore, tend to be high intensity, high stakes negotiation sessions rather than brainstorming and problem solving sessions.  With their professional emphasis on preparation for trial and being focused on the impending hearing before a judge, attorneys naturally also place emphasis on “what would a judge do,” rather than allowing their clients to engage in a co-operative quest for mutually satisfactory solutions.  After all, the attorneys are focused on “winning,” and they are eager not to let their client lose any potential trial advantage.  Additionally, because judges only have a limited range of options available to them, the focus tends to be on those options rather than on the many other, creative types of arrangements parties  might choose if they were to think “outside the box.”   For obvious reasons, the attorneys prefer to inject significant management into what their clients say and do in mediation, in an effort to avoid prejudice in the event of an additional trial.  These differences in process and in focus change the entire flavor of the mediation, making it more like a zebra and less like a horse.  You may be able to ride a zebra, but it is not the same as a horse.

There will be some who take issue with this characterization.  Certainly, just as there are variations between types of horses and types of zebras, it is not completely fair to say that this brief description is true for every case.  Yet, for the most part, in a truly “mediated divorce,” the parties are not pitted “against” one another during their divorce negotiations.  It is fair to say that in most cases that are already in court the parties clearly are already adversarial.  The difference affects almost every aspect of the case.

In an earlier blog post, I described the mediator in a mediated divorce case as being like  New York City taxi cab driver, helping to guide the parties through a confusing landscape to get them from point A (married) to point B (divorce) with as little collateral damage as possible.  In a case guided by a mediator before the parties have filed divorce papers, the mediator will seek to empower the parties to cooperate, will encourage them to share information, and will help them act as a team to find solutions that feel fair and w hich will work for everyone in the family.  Thus, even though the parties are divorcing, use of a mediator can act as a bridge to help the parties formulate the best possible solutions available for their family in the changed circumstances.  This does not mean that the question “what would a court order” is irrelevant.  What a court would order is a good measure of what is objectively “fair.”  However, there are other ways of measuring fairness, too.  In many cases what a court would do is a very appropriate measure of fairness.  However, sometimes the parties themselves also decide that there are reasons to justify doing things differently.

There also are cases where mediation is not appropriate.  Mediation is not a way for one party to get their way at the expense of the other.  Both parties must demonstrate a commitment to principles of fairness.  If one party doesn’t care about fairness, then the other party will need the protection of the Court to enforce those principles.

The different role of lawyers in mediated divorce also does not mean lawyers are not needed or are not involved.  In a mediated divorce, parties are encouraged to consult with their attorney for advice and feedback.   After all, lawyers are experts in what the law is, and what the law says is relevant.  The difference is that, in a mediated divorce process, lawyers are consultants rather than stage managers or directors who manage and control a case. Additionally, after the parties have arrived at a settlement they both feel is fair, there will still be a need for that settlement to be reviewed for fairness and completeness by attorneys.  The settlement will need to be drafted into the form of a written contract.  And then, after this contract is executed, attorneys will be needed to manage the legal process that is necessary to get the settlement reviewed and approved by the court and to have the divorce finalized.

Some readers might ask, “why use a mediator when I’ll need to use an attorney anyway?”  The answer, hopefully, is apparent at this time.  The role of the mediator is different from the role of attorney.  The attorney focuses on the legal process.   The mediator’s role is not legal, but rather to help the parties to reach a full and fair agreement, hopefully prior to the start of the legal process.  The cost-effective side of divorce mediation is that the mediator is focused on reducing conflict.  The adversarial process, in contrast, sometimes can increase it.

If you’re interested in scheduling an initial consultation to learn more, fill out the form below.  The charge for an initial consultation is $200.

Posted in Divorcing and Parenting, Mediated Divorce, Resources For Peacemakers, Uncontested Divorce | 1 Comment

Medicare Payment for Rehab After Hospital Stays

I want my clients who are eligible for Medicare (and their families) to understand that whenever they go to a hospital, it is important to know and to clarify their billing status.  Hospitals are increasingly categorizing stays as for “observation” or “outpatient” even if the patient is in the hospital for several days.  This is because hospitals have a large financial incentive to classify an individual as outpatient.  (An outpatient stay is covered under Part B of Medicare.  An inpatient stay is covered under Part A of Medicare.)

The rub for you is that, under the Medicare statute, an individual must have an inpatient stay in the hospital of at least three consecutive days, not counting the day of discharge, in order to meet Medicare criteria for coverage of post-acute care in a skilled nursing facility (SNF).   A simpler way of saying this is that Medicare will only pay for “rehab” if the patient is being discharged from in-patient care.    The bottom line for my clients is that, if you or your loved one is not “admitted” to the hospital in the first place, Medicare will not pay for “rehab.”  It’s important to clarify this with the hospital!

 HERE is a page with self-help resources if you find yourself being impacted by this issue personally.   Additionally, the National Academy of Elder Law Attorneys (NAELA) is requesting your help in lobbying to eliminate this loophole that is being used to deprive patients of reimbursement for legitimate and cost saving health care measures.    HERE is a link to a page on the web site of NAELA where you can learn more and sign on to support legislation designed to fight this technicality.

If you find yourself needing my assistance with an issue related to Medicare, feel free to contact me using the contact form below.

Posted in Elder Issues, Preventing Problems Through Elder Care and Estate Planning | Tagged , | Leave a comment