Do you act as a mediator and what is mediation?
Yes I do. And I absolutely love the process. When I mediate, I already have two people who want to resolve their differences without litigation. That is a wonderful start. If I can get two parties to talk to each other and come up with solutions quickly then I am very excited! I think our role as family law attorney’s is to help families. Yes, help families. This is my favorite way to do that and any chance that I have to do so I am enthused. Below is an overview of the process.
Understanding The Mediation Process
Mediation is a voluntary process by which a neutral third party assists you in reaching a mutually acceptable agreement as to the issues of visitation and custody of your child(ren), and/or the division of property. My role as your mediator will be to assist you in identifying the issues, reducing misunderstanding, clarifying priorities, exploring areas of compromise and finding points of agreement — not in telling you how you should resolve those issues. Any agreement reached by you can resolve all or only some of the disputed issues.
Legal Counsel and Legal Advice
As a mediator, I am not acting as an attorney and will not under any circumstances give legal advice to either party. Both parties are advised to seek their own legal counsel at any time during the mediation proceeding.
A mediator may give legal information to both parties as may be necessary for the parties to make informed decisions. However, the mediator cannot give either party legal advice. Understand that legal information and legal advice are very different. Legal advice relates to your rights under the law. Legal information relates to general information about the law.
Each of the parties is encouraged to seek the advice of independent and separate counsel at any time during the mediation process with regard to his or her individual legal rights and responsibilities.
Each of the parties is requested to seek the advice of independent and separate legal counsel prior to signing any formal separation agreement prepared by an attorney who purports to incorporate the Memorandum of Understanding the parties have designed.
No Legal Action to be Taken During Mediation Process
The parties agree that no legal action of any kind will be taken by either of them during the course of mediation, except with the express agreement of the other party and the mediator. Further, if either or both parties have retained counsel prior to mediation, he or she shall be obligated to direct his or her attorney in writing that no action is to be taken on his or her case while the matter is in mediation.
Although the mediator is a licensed Kansas attorney, he/she cannot give legal advice to any participant and he/she cannot represent either or both of them in their marital dissolution or child custody issues.
Communications with the Mediator
The parties will not communicate or meet with the mediator concerning matters in mediation except in the presence of each other during a mediation session unless the parties expressly agree beforehand that communication between the mediator and an individual party may be helpful and appropriate in reaching settlement.
Third Party Involvement
To facilitate the mediation process, the parties shall refrain from discussing the matters in mediation with friends, relatives or others. However, you are encouraged to consult with legal counsel at any time and to consult with mental health professionals or clergy as you may find helpful.
Each party shall fully and completely disclose in good faith to the other party and the mediator all information and writings, such as financial statements, income tax returns, pension and/or profit-sharing plans, or any other documentation.
The preparation of budgets and financial statements by each party is an essential part of the mediation process. If either party shall fail or refuse to prepare those documents adequately the mediator shall have the duty to suspend or, if required, terminate the mediation process.
Transfers of Property During Mediation
During the mediation process neither of the parties shall transfer, encumber, conceal, sell or in any other way dispose of any tangible or intangible property except in the usual course of business or for the necessities of life. In addition, transfers or expenditures by either party outside regular monthly expenses shall be disclosed prior to expenditure.
Any participant or the mediator may terminate mediation at any time, except when the mediation is court-ordered pursuant to the corresponding Kansas or Missouri statutes, in which case the participants may terminate the mediation at any time after the required time.
The mediator will terminate the mediation whenever the mediator believes any one of the following:
(a) continuation of the process would harm or prejudice one or more of the parties or the children;
(b) the ability or willingness of any participant to participate meaningfully in mediation is so lacking that a reasonable agreement is unlikely;
(c) the participants’ interests are so complex and difficult that the participants cannot prudently reach an agreement without legal or other expert assistance;
(d) there is a known or potential conflict of interest on the part of the mediator which would affect the mediator’s impartiality;
(e) there has not been a fair and full disclosure of all relevant information;
(f) the mediator must terminate the mediation to report suspected child abuse;
(g) in the mediator’s professional judgment the agreement does or will involve overreaching, duress, or unfairness; or,
(h) the continuation of the process would harm a participant or the proposed agreement does not protect the best interests of the children.
Evidence of anything said or of any admission made in the course of the mediation is not admissible in evidence, and disclosure of such evidence shall not be compelled in any civil action in which, pursuant to law, testimony can be compelled to be given. By signing this agreement, the parties are waiving the right to subpoena or otherwise compel the mediator or the mediator’s agent to disclose any matter disclosed in the process of setting up or conducting the mediation.
Unless the document specifically states to the contrary and is signed by all parties to the mediation, no document prepared for the purpose of, or in the course of, or pursuant to mediation, or a copy of any such document shall be admitted into evidence, and disclosure of any such document shall not be compelled in any civil action in which, pursuant to law, testimony can be compelled to be given.
Evidence may be admitted if all persons involved in the mediation consent to its disclosure.
All communications between each participant and the mediator shall be confidential and, in the event of litigation regarding custody or visitation with the children of the participants or any other matters discussed with the mediator, neither participant shall call or cause anyone else to call the mediator as a witness or subpoena his/her records.
If mediation has been court-ordered, the mediator shall report a termination of the mediation to the court, but will not state the reason for termination except when the termination of the mediation is due to a conflict of interest or bias on the part of the mediator.
If subpoenaed or otherwise notified to testify, the mediator will inform the participants immediately so as to afford them an opportunity to quash the process.
Mandatory Reporting of Child Abuse and Neglect
The participants understand that mediators have imposed upon them by Kansas Statutes Annotated 38-1522, and amendments thereto, certain obligations concerning the disclosure and reporting of child abuse and neglect. If during the mediation process a matter comes to the mediator’s attention which he/she believes he/she is obligated by law to report to any agency or authority, nothing contained herein shall prohibit him/her from making such a report or disclosure. Pursuant to Kansas and Missouri law, the mediator is further obligated to report the commission of a crime during the mediation process or an expressed intent to commit a crime in the future, and nothing herein shall prevent the reporting of such crimes or expressed intents. The participants hereby agree to release and hold the mediator harmless from any damage they may suffer as a result of such disclosures.
Do you represent more men or women?
I actually represent both and it is almost an equal balance between the two. I do not really have a preference and enjoy working on behalf of both. While some firms suggest that they protect the rights of women or men, people need to realize that the law is the law and that the rights of both men and women are considered and, with competent counsel, protected. For any client my job is to represent them to the very best of my ability, regardless of gender. I have the luxury of perspective in my cases, which is part of what I am being hired to provide. I have to look at the facts of each case and determine with my client the best probable outcome and work to achieve that. I am aware that there are some “mommy” biases in the family law arena (which is simply a reflection of the “mommy” bias in society), and men need to recognize that and work to overcome it in their particular situation in order to effectively obtain as much parenting time as possible. I enjoy giving both men and women a voice when often they feel as if they have none.
What is Collaborative Law and what are the advantages and disadvantages?
According to the IACP website, Collaborative Practice has three key elements: (1) The voluntary and free exchange of information; (2) The pledge not to litigate (go to court) and withdrawal of both attorneys and other team professionals if either party litigates; and (3) A commitment to respect for both parties’ shared goals.
Lawyers who practice Collaborative Law in the family law arena describe the process as the “no-court” divorce or the “peaceful divorce”. Most agreements do not even allow you to file your Petition for Divorce during the process. The process uses your attorney along with other professionals, such as coaches, child specialists and financial specialists to help you settle your case (in theory). The key element of collaborative law that is completely different than a “standard” divorce process is “The pledge not to litigate (go to court) and withdrawal of both attorneys and other team professionals if either party litigates“. Please pay attention to that key element when making your decision to go down the Collaborative path.
I have done the training in Collaborative Law and am happy to participate in the process if that is your choice. The bulk of my practice, however, is more traditional divorce or mediation. In my traditional divorce cases I believe that more than 90% are settled out of court. The various methods used in the Collaborative divorce process are also used in the traditional divorce. We can hire mediators, coaches, financial planners and the like if the parties agree to do so. The key difference in the traditional divorce setting is that if I cannot resolve your case I will go to court with you and try your case. I will be with you from start to finish. If the Collaborative practitioner fails to resolve their cases, they have the luxury of withdrawing as your counsel. I get those cases on occasion. When that happens, we are at the beginning. Petition has not been filed, no agreements have been reached, and they are starting over. I and most “standard” family law attorneys already have “a commitment to respecting both parties’ shared goals” and frequently agree to “the voluntary and free exchange of information”. That is not unique to a collaborative process. It sounds good perhaps, but it is form over substance in my opinion. I respect the process and the many excellent attorney’s who choose this as their practice area and would love to work with you in that arena if that is your choice. Just be informed about the process when you choose that path.
Does it matter who files first?
In most cases, not at all. He who files first goes first in court. He who files second goes second in court. I have no problem being second in court as I hear the other side first and I am better prepared for my side of the case. However, we have the ability in Johnson County, Kansas to get temporary court orders on the day we file without a hearing and if temporary financial support or other issues are urgent, it can be important to file first so those orders are in place immediately. We can get them if we file second, but we have to have a hearing and it can take quite a bit of time. Sometimes the delay is very difficult on a person who needs the temporary support or other matters, but our dockets are very full these days…
I want a real “bulldog” for an attorney – is that best? And are you a “bulldog”?
I can be – but I do not choose to be unless absolutely necessary. I want all matters to settle outside of court as that is always the best for all concerned. I work very well with most attorneys in the area towards an amicable settlement. In the event a case is tried, which is surprisingly rare, I conduct myself in a businesslike matter at all times. But I can be very effective in trial – make no mistake. I have a lot of years trying cases, both in front of a jury and a judge. I know what I am doing. However, if someone wants an attorney who simply is difficult to make the other side miserable, I am not the person for the job. I will terminate a client if they ask me to take actions that I believe are unethical, unreasonable or vindictive or if I believe the client is doing anything of that nature. I strive to be a professional and to do you a service, and “crazy” is not a service I provide. It is amazing how much can be accomplished with the right representation on both sides. I have the utmost respect for most of my opposing counsel and I hope they feel the same about me. I will not fight the fight in useless letters and emails to my opponent bickering back and forth. We will try to prepare the case and hopefully settle the case. There are many avenues to help a case settle and we will make every effort to accomplish that result. If settlement is not successful, my trial skills will be useful in court where it really matters.
I do not want my spouse to have any contact with the children – is that possible?
The short answer is almost never… The law favors a relationship with both parents and even with neglect or abuse, there is supervised parenting time. It would be a very extreme case where the end result was no contact at all.
What is my attorney’s role in my divorce?
My role as your counsel is to provide you with competent legal advice and to assist you in navigating your litigation. I follow a pragmatic approach to most things since emotions tend to cloud our judgment. My role is to lend some sanity to what can feel like an insane situation. I will not tell you what to do but will help you make wise choices in this process. There are so many ways to accomplish any goal, and that includes family law matters. We will explore various options and like trying on shoes – you need to find what fits best for your life. If you are uneducated about your finances, I will try to educate you so that when we are done, you feel confident that you can take over as part of your own support system in your new life.
What distinguishes you from other practitioners in their field?
What Distinguishes Me
I am a trial lawyer with over 25 years of experience in trial, both to a judge and jury. I had top of the line training with large firms out of school for over 13 years. I know what I am doing and I am not afraid to go to court. You would be surprised at how many attorney’s are inexperienced in this area and it can impact the quality of representation received. My goal is never to go to court as I think competent attorneys should be able to accomplish as good a result as a judge, if not better, if everyone is working together. We rarely need a Judge to tell us how to resolve something if everyone is working towards a common goal. But when it is necessary, you want an attorney who can handle the task. I think my personality is unique in that I have the ability to see the big picture and maintain good perspective. I do not take on my client’s emotional issues and lose the impartiality I need to be an effective counselor for the client. I have the ability to maintain balance and perspective (with a sense of humor thrown in now and again), while aggressively advocating my client’s position and coming up with creative solutions. I will not hesitate to go to trial when that is the only viable alternative.
What sets you apart from other attorneys?
What Sets me Apart
I have practiced law for over 25 years, and was a partner in a large law firm handling complex personal injury litigation, frequently requiring appearances in front of judges and juries to argue the case before forming my own law practice. My trial experience is extensive, both in front of juries and court tried cases. Such a background gives me the confidence that if a settlement is not feasible for any reason, then my trial skills and experience will be an invaluable asset to the client.
I have an undergraduate degree, Cum Laude, in Accounting, which gives me exceptional knowledge and background in understanding and handling the complexities of personal finances in a divorce. I provide effective and aggressive representation and work well with the emotional aspects of the divorce as well as the financial. I am willing to accept difficult cases and believe that even those can be resolved short of trial with the proper handling of the case.
I am also a really good listener and pretty good at some advice on the personal side of divorce as well. It is not legal advice, but my clients have told me that it has really been helpful to them.
Do you go to trial on most of your cases?
Going to Trial
Most cases settle out of court without the necessity of trial. I would estimate that as much as 90% of my cases settle. Unfortunately, some do not for one reason or another. Going to trial is a very expensive and an emotionally draining process for most people. No one “wins” a divorce most of the time. A divorce trial often reflects attorneys and/or parties that have been very unreasonable in the settlement negotiation process, and sometimes both the attorneys and the parties have participated in the failure of the negotiation process. My goals are to try and educate clients about the likely outcomes of a contested trial and to achieve a settlement that closely approximates a trial outcome or actually exceeds a probable trial outcome. Most cases do settle, but I am ready to go to court on your behalf if it does not.
What professional accomplishments are you most proud of?
First, my academic career is something I continue to be proud of. I then went to work and tried many cases as a young lawyer in front of juries with a great deal of success. My trial skills have served me well over the years. I have grown into the family law area and enjoy it more with every year that goes by. While some think a divorce attorney is a negative thing, there really is a sense of gratification that many do not see. I really feel like I am helping people when they feel helpless, trapped or afraid. I have had occasion to stop a possible suicide by being there emotionally as a support system when the client had no one else. I am not judgmental – I allow everyone to live the life they want. If they want my help, all they have to do is ask. While the emotional side of this practice is very rewarding for me, my background in accounting and my strong legal skills give me a special ability to help people who come without those skills. I love to teach people to become active in their own financial lives and empower them to believe that they are going to survive when the divorce process is over. It is a new beginning and I enjoy being there to see people survive and grow. I am the strength to the weakness of others when they need it most. I then empower them to find their strength. If I have financially advanced clients, I have the education in Accounting to be able to understand and work together on complex financial issues. As the years go by, I enjoy the legal community that I work within. Some of the family law attorney’s in the area are the best and brightest around and it is a pleasure to work with many as I know that I can trust them to practice the kind of blue ribbon law that I am most proud of. We honor our clients by the quality of work we provide.
What are your professional goals and priorities in divorce?
I believe in trying to resolve divorces and modifications in a way that is respectful to all parties without compromising the issues that are most important. I think professionalism in all matters is best. You can be aggressive without compromising your morals and ethics. My foremost goal is to try to resolve all matters by settlement first. That is the best thing for everyone – to have a voice in the outcome. A trial is necessary sometimes, but it is always risky and someone else will be dictating your life and once it is ordered, it is very difficult to change.
What if I decide to retain you – what is the retainer fee and how is that handled?
I use retainers in all of my cases. It is an initial deposit the size of which will depend on the nature and complexity of your case. I bill my hourly rate against that retainer deposit until it gets low and then we ask for another retainer as long as your case is still pending. Any unused retainer is refunded to you at the termination of your case.
What are your charges for initial consultations?
It is my policy that each potential client may have a free, initial, twenty minute telephone consultation. I will ask a lot of questions in attempt to understand the complete situation at hand. Although your case may seem quite simple, the initial phone consultation may clarify specific points that you have not previously thought of or addressed. It is a good chance for both of us to determine if we would work well together. I do require a conflicts check before speaking with you just to make sure that I have not consulted with your spouse so please be patient with that process!