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Mary Culbert’s ABCs of Mediation (Part 3 of 3)

Thanks to the new USA television show, Fairly Legal, mediation is getting a lot more attention than ever before. But how does it really work? In Part 3 of Mary Culbert’s ABCs of Mediation, Southern California’s own real life mediation guru takes listeners through a step-by-step guide to the mediation process.

Missed Parts 1 and 2?  Listen now:

Part 1: Mediation giant Mary Culbert discusses how her family history and a background in theatre paved the way to a career as a peacemaker.

Part 2: Every question you’ve ever had about mediation answered in a single podcast.

Don’t miss another episode! Subscribe to Ron and Robert on Divorce on iTunes.

Why We Collaborate (Part 1 of 5)

By Ty Supancic, Esquire

One of the primary goals of The Law Collaborative, LLP, is to become masters and innovators of Consensual Dispute Resolution techniques and practices. In order to develop and promote Consensual Dispute Resolution so that it may become the mainstream, we must change our vocabulary as well as our approach.

We purposefully use the term Consensual Dispute Resolution (CDR) instead of the more prevalent Alternative Dispute Resolution (ADR) because the word “alternative” is a pejorative. It suggests that ADR methods are secondary or tertiary choices to “regular” or traditional dispute resolution. “Regular” suggests mainstream, preferred, and superior. But anybody who has ever been involved in “regular” dispute resolution (litigation) can attest to the fact that, while it may be mainstream, it is not superior. Oftentimes both parties are worse off after participating in the traditional dispute resolution process, and the only people enriched are the lawyers.

Competent and ethical attorneys should always consider CDR methods and approaches first. Litigation should always be considered the last resort as it is usually the most expensive and least predictable avenue. We believe that in the near future, litigation will be considered the alternative dispute resolution method.

One of the most promising developments in the field of CDR is Collaborative Law, a specialized form of con-joint mediation involving two attorneys. This article is not intended as a primer on Collaborative Law; many far more eloquent practitioners have already provided these. For a short list, go to the Articles section of our website.

Nor is this article intended to persuade you that Collaborative Law is the way of the future. Do not bother reading further unless you believe that Collaborative Law holds great promise. If you need convincing, I would refer you to the case studies on our website, or those on the websites of any of our colleagues. The proof of the pudding is in the eating as they say. Instead, this article is intended to discuss and reflect on what can be done to improve our collaborative skills and instincts.

Read more…

Mary Culbert’s ABCs of Mediation (Part 2 of 3)

What’s the difference between community mediation programs and private mediators?  Are there different styles of mediation? What kinds of mediation are available?  When can mediation come in handy?  What kind of ethical duty do mediators have to make sure everyone gets a fair shake? How do you complete your case after you’ve made a mediated agreement? Are there ever situations when mediation is not a good idea?

Mary Culbert, Bilingual Certified Mediator, Associate Clinical Professor at Loyola Law School, and president of The Loyola Law School Center for Conflict Resolution answers every question you’ve ever had about mediation but were afraid to ask. (Special thanks to Ron and Robert on Divorce for asking the tough questions.)

Missed last week’s episode? Listen now:

Part 1: Mediation giant Mary Culbert discusses how her family history and a background in theatre paved the way to her career as a peacemaker.

Don’t miss another episode! Subscribe to Ron and Robert on Divorce on iTunes.

Mary Culbert’s ABCs of Mediation (Part 1 of 3)

Mary B. Culbert is a Bilingual Certified Mediator, an Associate Clinical Professor at Loyola Law School, and the president of The Loyola Law School Center for Conflict Resolution.  She is also a Loyola Law School graduate.  A giant in the Southern California Mediation community, she attributes her family history and a background in theatre as having helped pave the path to her career as a mediator.

In part one of this three part series, Mary talks about how and why she became a full time peacemaker.

For more information about Mary Culbert, visit www.LLS.edu/academics/faculty/culbert.html.
For more about The Center for Conflict Resolution, visit www.lls.edu/academics/candp/ccr.html.

Like what you heard?  Subscribe to Ron and Robert on Divorce on iTunes.

The Marriage Eulogy

By Ty Supancic, Esquire
Associate Attorney at The Law Collaborative, LLP

There is an old saying, “History is written by the winners.”  In litigation, there are winners and losers.  We believe that when parties in crisis choose mediation over litigation, everyone has the potential to come out a winner.  If the winners write history, why can’t the winners in a dissolution write their own history?

Fifty years after a divorce, the children and grandchildren of the original divorcing couple will tell and believe a story about why their parents and grandparents divorced, what kind of people they were, and what aftermath or legacy they left behind.  A couple going through a dissolution has the opportunity to write what they would like that story to be.  By writing that story, and by keeping that story in mind, they can guide their actions and decisions in such a way that the story can become a sort of self-fulfilling prophecy.  Without having the story as a guideline, the parties are building without a plan, traveling without a map. They’ll build something and end up somewhere, but not with anything or anywhere they would have hoped.

The exercise of having individuals who are going through a dissolution of marriage write a “Joint Divorce Story” is not a new idea.  Ron has been recommending it to his clients for years.  Unfortunately, few ever take the time to engage in this useful exercise.  Oftentimes they confuse the Joint Divorce Story with a mission statement or their short-term goals.  The exercise might be more easily understood if it is renamed “The Marriage Eulogy”.

One of our paralegals, Maria, told me that when she was in high school, the nuns had them write their own eulogy as part of a “Death and Dying” class exercise.  The idea was that by writing about all the great things they wanted to be remembered for when they died, one might be guided in making decisions during their lives.  The Marriage Eulogy has the same goal.

At common law, upon marriage a couple ceased to exist as individuals and became one entity.  This concept lives on today as new couples dream about what their married lives will be like.  Couples build powerful dreams that take on lives of their own.  While divorce never ends a relationship, it does end marriage, and with the end of the marriage, that powerful dream of marriage dies.  Couples going through divorce really are witnessing the death of an entity. Psychology informs us that children witnessing the divorce of their parents can be as devastated as a parent losing a child.

Often when we lose somebody important to us, we feel compelled to write a eulogy in honor and memory of that person.  A eulogy is not something scrawled in haste.  It is not something we compose in our heads while driving.  A good eulogy is something we take great pains in writing.  It is something we craft and hone and polish so that the result is powerful and evocative.  We are trying to sum up the essence of an entire being in a few succinct words.  The Marriage Eulogy should be written in such a manner.

When couples are not ready to write a joint eulogy, I have proposed that they write individual eulogies to exchange and reflect on individually.  Knowing how your ex-spouse wants your marriage to be remembered by their grandchildren can be a powerful thing.

One might tread more softly and be more thoughtful if mindful of what history could say about them and their life.  “I can’t think about my ex in that way yet!  It’s too soon.”  Okay, but you could write a fairy tale about how a divorce would be remembered.  That is a powerful starting place.  If we all were to conduct ourselves in accordance with the values and motives of a fairytale hero or heroine, we would all find ourselves kinder, gentler, nobler, and wiser as a result.

Rules for Fair Fighting

Everyone disagrees sometimes.  In fact, a relationship that avoids conflict may be unhealthy. A healthy relationship does not avoid conflict, but uses it to clear the air productively, without hurt feelings.

Here are fourteen rules for fighting fair:

1.  Take Responsibility. It may take two to argue, but it only takes one to end a conflict. Make a commitment to never intentionally harm your partner’s feelings.

2.  Don’t escalate. The most important commitment you will make to fair fighting is to overcome any desire to speak or act hurtfully.

3.  Use “I” speech. When we use “you” speech, it is often perceived as accusatory.  Instead, talk about your own feelings: “I feel hurt when I hear that.” This may prevent defensiveness, as it’s hard to argue with a self-report.

4.  Learn to use “time out”. Agree that if hurtful speech or actions continue, either party may call a time out.  The three elements to a successful time out are:  1.) Use “I” speech to take responsibility, such as, “I don’t want to get angry.”  2.) Say what you need: “I need to take a walk to clear my head.”  3.) Set a time limit: “I’ll be back in 15 minutes to finish our talk.”  These steps will keep either of you from feeling abandoned.

5.  Avoid and defend against hurtful speech. This includes name-calling, swearing, sarcasm, shouting, or any verbal hostility or intimidation.  Agree to a key phrase that indicates hurt feelings, such as “That’s below the belt.”

6.  Stay calm. Don’t overreact.  Behave with calm respect and your partner will be more likely to consider your viewpoint.

7.  Use words, not actions. When feelings run high, even innocent actions like hitting a tabletop may be misinterpreted.  Use “I” speech to explain your feelings instead.

8.  Be specific. Use concrete examples (who, what, when, where) for your objections.

9.  Discuss only one issue at a time. If you find yourself saying, “And another thing….,” stop.

10.  Avoid generalizations like “never” or “always”. Use specific examples.

11.  Don’t exaggerate. Exaggerating only prevents discussions about the real issue.  Stick with facts and honest feelings.

12.  Don’t wait. Try to deal with problems as they arise — before hurt feelings have a chance to grow.

13.  Don’t clam up. When one person becomes silent and stops responding, anger may build.  Positive results are attained with two-way communication.

14.  Agree to these ground rules.

Remember, when you both agree to common rules, resolving conflict is more likely.  Sometimes, no matter how hard we try to fight fair, we simply can’t resolve a conflict.  When this happens, talks with a trained professional may help.  We are always available to assist you when you are unable to reach a resolution you can both live with.

The family law lawyers at The Law Collaborative, Los Angeles, is dedicated to providing useful tools like these to assist couples in managing conflict, resolving issues, and preserving families.  Please visit our website for more tools and resources.

Conflict Revolution

Last week I returned from Italy, where members of Mediators Beyond Borders presented to the new Italian chapters in Florence and Rome. I wanted to share with you one of the talks I gave in Florence. Thank you for reading.

Photo courtesy of FreeFoto.com

When I was a little boy growing up in Seattle, Washington, I studied the life of an extraordinary Italian man. Three days ago I had the privilege of kneeling and praying at the tomb of Francis of Assisi. He lived during a time of dissonance, distress, and hostility, amid a crisis of violence and bloodshed. He had been a soldier. He was taken as a prisoner and spent a year in a dungeon. Through his suffering he came to an awareness that violence does not end violence. He came to the conviction that there had to be another way. He realized that he must give his life as the example of this new and different way. In so doing he founded the Franciscan Order based on poverty, charity, and good works.

We also live in a time of crisis, conflict, violence, and bloodshed. Innocent people are dying in unprecedented numbers in many places around the globe. Our leaders only fuel the flames with their failed efforts to force peace through war. It is again time for a new and different way.

Not long ago, Ken Cloke, a mediator from Santa Monica, watched paratroopers dropping into Bosnia with machine guns and grenade launchers.  He wondered what the outcome would be if they came bearing tools of peacemaking, rather than weapons of destruction.  If the paratroopers were facilitators of dialogue and mediators of conflict, carrying only the skills and technology of dispute resolution. What if their message elicited and encouraged disputants to stop, listen, and reflect in a mindful way that promoted understanding and invited participation? His musing was the birth of Mediators Beyond Borders. Still in its infancy, but engaged in eleven countries around the world, it is helping to build indigenous capacity with tools for dispute resolution wherever requested and invited.

My own journey is similar. A scorch-and-burn litigator for over thirty years, I knew my training in traditional methods of dispute resolution left wreckage and chaos in its wake. Mediation opened the door to consciousness and collaboration, and underscored the need for signed agreements to avoid litigation by both parties and counsel. First I used the services of a court mediator. Then I became a court mediator. Now I am a member of a Collaborative Law Firm that, first and foremost, promotes consciousness, awareness, discernment, and litigation avoidance whenever and wherever possible.

Having known Ken Cloke for several decades, and as impressed as I was with his intelligence and empathic peacemaking skills, I was immediately drawn to the vision and mission of MBB. Attending the Annual Congress, serving on Committees, and becoming familiar with the caliber and the talent of my professional colleagues among MBB members has confirmed my belief that this organization, by virtue of its values and the quality of its aspirational intentions, would only attract the best of the best.

If you only read one book about Mediation, it must be Conflict Revolutionby Ken Cloke.  It paints a picture both breathtaking and inspirational of the possibility of peacemaking on a global basis. It deserves to be translated into all languages and shared with all people who seek to peacefully change the world. The information is essential to the present task we face together.

When I was a little boy growing up in Seattle, I read, “Blessed are the Peacemakers, for they shall be called the children of God.” I still believe that. I believe you do as well. Welcome to the Revolution.

Should I hire an attorney?

Only an attorney can tell you whether or not you need an attorney.

“The problem with being human is that you don’t know what you don’t know.  Even when people come into my office and they just want to use a paralegal, my practice is always to say, ‘That’s great, but let’s just spend a couple of minutes reviewing the main points of the agreement to see if  you’ve covered everything, if you’ve left out anything, if you’ve overlooked something or have been remiss in someway.’  Sometimes we’re able to tell a client that, great news!  They don’t need an attorney!  In those cases, a client can just work with a paralegal and they can get a very, very low cost, affordable dissolution.”  —  Ron Supancic, CFLS.

About Ty Supancic

Before joining The Law Collaborative, Ty enjoyed working for more than a decade in the entertainment industry. Ty worked for five years as a talent agent representing as many as a hundred clients at a time at one of America’s most recognized entertainment companies before he realized that his detailed, in-depth approach with talent made him better suited for personal management.

Ty left the agency and joined a management and production company where he worked for six years developing talent and entertainment projects. Ty also worked to produce television and film projects, music acts and records, and even a Vegas headliner. As both an agent and a manger, Ty supervised and worked closely with attorneys negotiating talent contracts, drafting production deals, and licensing music for film and television.

Over time Ty realized that, as hard as he worked on behalf of his clients, everything ended up in the hands of the lawyers. If he really wanted to continue helping people using the skills he had developed, he had to become an attorney. With this realization, Ty enrolled in the California Bar’s Law Office Study Program and began “reading the law” at TLC.

After passing the First Year Law Student’s Exam, Ty continued his studies, passed the California Bar Exam, and was sworn in as a licensed attorney. Ty is thankful that California is one of the seven states that still provide an avenue to study and become an attorney on the traditional path followed by Thomas Jefferson and Abraham Lincoln.

Having worked as a paralegal during his studies, Ty continues to focus his practice in the area of Consensual Dispute Resolution and believes his expertise in transactional law and his non-traditional schooling work to his clients’ advantage. Law schools focus on adversarial, Win-Lose approaches which make Consensual Dispute Resolution methods difficult for many of their graduates. By omitting the usual adversarial indoctrination from his schooling, Ty hopes to forge new solutions for conflict resolution and expand the application of Consensual Dispute Resolution to other areas of law.