mediation/ collaborative law track · mediation/ collaborative track wednesday, june 15 rooms...

Mediation/Collaborative

Law Track

Wednesday, June 15 Rooms 304-305

Mediation/Collaborative Track

Wednesday, June 15 Rooms 304-305

8:00 a.m. - 9:00 a.m. Conciliation in Family Business and Probate Cases Nick Critelli, Critelli Law, P.C., Des Moines, Iowa 9:20 a.m. - 10:20 a.m. Benefits of Mediation in Probate Cases Kristen Hall, KH Mediations, Windsor Heights, Iowa 10:20 a.m. - 10:50 a.m. Family Law Medaition in Iowa Natalia Blaskovich, Reynolds & Kenline, L.L.P., Dubuque, Iowa Kim Roddick, Reynolds & Kenline, L.L.P., Dubuque, Iowa 1:30 p.m. - 2:30 p.m. When, Why and How to Use Collaborative Mediation Rob Tully, Rob Tully Law Offices, P.C., West Des Moines, Iowa 2:40 p.m. - 3:40 p.m. Team Approach to Collaborative Law in Divorce Cases Kimberly Stamatelos, Stamatelos & Tollakson, West Des Moines, Iowa Ashley Tollakson, Stamatelos & Tollakson, West Des Moines, Iowa Crystal Hemesath, 515 Therapy and Consulting, West Des Moines, Iowa 4:00 p.m. - 5:00 p.m. What Clients Want, What Clients Need Christine Moon, District Chair, DMACC, Boone Campus, Boone, Iowa Kimberly Stamatelos, Stamatelos & Tollakson, West Des Moines, Iowa

2016 Annual Meeting Conference2016 Annual Meeting Conference2016 Annual Meeting Conference

Mediation/Collaborative TrackMediation/Collaborative TrackMediation/Collaborative Track

Rooms 304-305

WEDNESDAY, JUNE 15WEDNESDAY, JUNE 15WEDNESDAY, JUNE 15

Benefits of Mediation in Probate Cases

9:20 a.m. - 10:20 a.m.

Presented by

Kristen Hall KH Mediation

6600 University Ave Des Moines, IA 50324 Phone: 515-229-7395

Mediation in Probate &

Aging Issues

Kristen HallKH Mediation

www.khmediation.com

AGING STATISTICS

People 65 and older currently make up 13% of U.S. population*

By 2030 that number will jump to 20% as baby boomers age*

People are working past 65

More than 2 million people 65 or older are raising grandchildren

60% of caregivers have had to change their work schedule to accommodate their caregiving responsibilities

*US Department of Health & Human Services, Administration on Aging

IMPACT ON FAMILIES

The shifting of roles and responsibilities generates a new family dynamic and can

create conflict between family members.

Elder: Safety v Autonomy

Juvenile: Parenting across the generations

New needs and new responsibilities create a need for families to plan across the

generations.

KH Mediation 2014

Mediation provides a process for families to resolve the

conflict without further damage to the relationship

HOW CAN MEDIATION HELP?

Mediation is a process of self determination

Changes the conversation and provides better tools for communication

Time efficient

Cost effective

Flexible

Confidential

Successful

KH Mediation 2014

WHAT DOES ELDER/PROBATE MEDIATION LOOK LIKE

• Facilitated family meeting

• Acknowledges changing needs and roles

• Creates a platform to bring up difficult topics in a safe environment

• Is an opportunity for constructive change

• Maintains privacy by keeping decision-making within the family

KH Mediation 2014

WHY DOES THIS WORK?

• Takes families out of the adversarial venue of the courtroom

• Takes the pressure off family members to “control” the discussion

• Mediation is solution oriented and allows for out of the box solutions

• Offers families a venue to identify and address family issues that are impacting legal issues

• Options and resources

KH Mediation 2014

•Family history and grief play a large role in probate cases

•Historical disputes within the family

•Competition between biological family and step family

•Misplaced grief and impact of loss

WHY DOES THIS WORK?

TAKING A TEAM APPROACH

• The aging individual.

• An advocate for the individual

• A spouse or life-companion

• Children

• Siblings

• Financial advisors

• Living alternative and care options specialists

KH Mediation 2014

CURRENT PROGRAMS

• Iowa AIM (Aging Issue Mediation) Project

• Partnership between Iowa Association of Mediators, Iowa Department on Aging, and

the 6 Iowa Area Agencies on Aging

• Agencies saw the conflicts occurring within families and the need for other options

• Trained mediators and agency personnel July 2014

• Service available in all 6 Area Agencies on Aging with fees on a sliding scale

CURRENT PROGRAMS

• Polk County Probate Mediation Pilot Project

• 3 year project approved by Iowa Supreme Court

• Beginning March 1, 2016 cases coming before the probate bench

may be sent to mediation before getting a hearing.

• Training requirements mirror family law program

• Juvenile guardianships, elder guardianships and conservatorships,

contested estates



Rooms 304-305


Family Law Mediation in Iowa When, Why and How to Use

10:20 a.m. - 10:50 a.m.

Presented by

Natalia Blaskovich Reynolds & Kenline LLP

PO Box 239 Dubuque, IA 52004

Kim Roddick

Reynolds & Kenline LLP PO Box 239

Dubuque, IA 52004

FAMILY LAW MEDIATION IN IOWA

• Mediation provides the parties an opportunity to retain all decision making while a mediator assists the parties in reaching a mutually agreeable solution.

• It is a flexible, informal process which is adapted to meet the needs of the

individuals.

• It is, generally, a less expensive means of resolving the matter then proceeding through the litigation process.

• Further, it provides parties the opportunity to retain much of their financial information private as between the two of them and that information does not become a part of public record.

• Further, if participants have children, it provides them with an opportunity to keep

much of their discussion off of the record which is, typically, in the best interest of the children on a long term basis.

I. OVERVIEW OF HOW FAMILY LAW MEDIATION IS STRUCTURED IN DISTRICT 1A:

A. The case is filed;

B. A mediator is assigned;

C. The parties can elect an alternate mediator – (If the mediator is elected rather than appointed, the mediator can charge something other than the Court appointed rate of $165.00); and

D. The parties must submit the matter to mediation prior to a temporary matters hearing and prior to a final trial. NO mediation for contempt hearings.

II. MEDIATOR’S FORMS IN DISTRICT 1A:

A. Mediator’s Disclosure of No Conflicts of Interest. - This is the first form that we are required to file indicating that we have searched the names and that we do not have a conflict of interest;

B. A Mediator’s Certificate of Compliance Re: Temporary Matter. – This is a form which requires the mediator to report that the parties have appeared and then indicate whether or not all or some of the temporary matters have been resolved by agreement and requesting the Court to either:

1. Conduct a previously scheduled hearing on temporary matters; or

2. Approve a Stipulation of the parties.

C. Mediator’s Certificate of Compliance with Final Mediation. -This is a form wherein we are required to report as to whether or not some or all of the agreements have been resolved and then ask the Court to either:

1. Order a trial scheduling conference; or

2. Approve a Stipulation to be presented within thirty (30) days.

D. Mediator’s Notice of Non-Compliance. This is a form that we are required to file notifying the Court if the parties fail to timely schedule mediation.

III. FILINGS THAT YOU (A PARTY’S ATTORNEY) MAY CHOOSE TO MAKE IN DISTRICT 1A:

A. Application for Exemption from Mediation as a Result of Domestic Violence. (If you intend on filing an application for exemption because of domestic violence, you must do so within twenty (20) days of the filing of the Answer by Respondent.)

B. Application to Modify a 236 No Contact Order to Allow Contact for Purposes of Mediation;

C. Application for Exemption from Mediation by way of Settlement;

D. Application for Exemption from Mediation due to Default Judgment;

E. Application for Hearing as Result of Non-compliance with the Mediation Requirement;

F. Application for Exemption from Mediation as a Result of Incarceration of Litigant;

G. Attorneys cannot jointly or mutually agree to waive mediation.

H. The court can order another party to pay the other’s mediation fees or reallocate the obligation for the costs of mediation.

IV. RELEVANT TIMELINES.

A. If a temporary hearing is applied for, it shall be set no sooner than five (5) weeks from the date of filing. Prior to that hearing, the parties must attend at least one (1) hour of mediation concerning temporary matters.

B. Mediation on all issues will be conducted within seventy-five (75) days of the date on which the Answer is filed by the Respondent.

C. A notice of noncompliance with mediation requirement is filed 120 days after Petition is filed if mediation has not begun.

V. WHAT CAN AN ATTORNEY DO TO BEST PREPARE THEIR CLIENT IN ADVANCE OF MEDIATION?

A. Have the client complete an Affidavit of Financial Status, including a monthly budget and income information.

B. Have the client compile and have present at mediation the supporting financial documentation.

C. Have the client make a list of all of the issues that they would like to discuss or decide at mediation.

1. Include any concerns, large and small;

2. Identify what is important about each issue; and

3. What do you want the other person to understand about this issue?

D. Consider having the client go online and look at a variety of different parenting plans so that they can get an idea as to the type of decisions that will need to be made, responsibilities that will need to be allocated and different ways that they can be allocated between the parties.

E. Consider having the client go online and take a look at some of the online calendaring tools. Utilizing the online calendaring tools for 2 people is an excellent way to make sure that there is ongoing communication regarding the children’s schedule, medical appointments, doctor’s appointments, hair appointments, and extra-curricular activities and provides the parties with some ability to share some of the responsibilities associated with those day-to-day obligations. The programs provide online tools for keeping track of child related expenses.

F. Make sure that your client understands that mediation often takes more than one (1) session.

G. Make sure that the client is fully advised with regard to the status of the law on the various issues pending in the matter and what his or her options are. Discuss with your client the range of what the Court might decide with regard to various issues and why.

H. Discuss with your client what happens if the client cannot reach agreements at mediation. Make sure that the client is aware that mediation is an excellent opportunity to resolve things amicably and substantially decrease the expenses associated with the litigation process.

I. Advise your client to speak with you prior to mediation about what issues you think need to be discussed at the time of mediation. Are there legal ramifications of these issues?

VI. WHAT SHOULD AN ATTORNEY BE PROVIDING OR CREATING FOR THE MEDIATOR TO IMPROVE THE LIKLIHOOD OF SUCCESS?

A. Pleadings, including any previous orders;

B. An Affidavit of Financial Status; and

C. A Child Support Guidelines Worksheet.

VII. SHOULD THE ATTORNEYS SEND A LETTER TO THE MEDIATOR AHEAD OF TIME?

A. If there are safety issues, please contact the Mediator and advise of such.

B. If there is a No-Contact Order, please contact the Mediator and advise of the restrictions of such. Further, please make arrangements to amend the No-Contact Order as needed to allow for mediation to occur.

C. Letter advocating particular issues are, generally, not helpful in the mediation process.

D. It is acceptable to advise the Mediator of the existence of certain unique issues such as mental health problems that may impact the mediation process.

E. Please advise the Mediator if this is a temporary issues mediation and, if so, what the temporary issues are.

F. Please advise the Mediator as to what the trial date or temporary issues hearing date is. Your clients often do not know.

VIII. WHAT ATTORNEYS DO THAT REALLY IMPROVE THE PROCESS?

A. Ensure that the clients have a realistic perspective of the remedies available to them through the Court system; and

B. Fully explain the mediation process, the litigation process, the status of the law with regard to the issues before the Court.

IX. CAN THE MEDIATOR BE CALLED TO TESTIFY?

A. The Standards of Conduct for Mediators are found in Chapter 11 of the Rules of Civil Procedure. Pursuant to 11.6, the Mediator is required to maintain the confidentiality of all information the Mediator obtains in mediation, unless the parties otherwise agree.

B. Further, the Mediation Agreements that most Mediator’s use typically provide that Mediators cannot be compelled to testify except to the extent that the confidentiality provisions have been waived.

C. A settlement agreement can be binding. Therefore, whether or not the settlement agreement is enforceable depends on whether or not a full agreement is reached.

X. SHOULD ATTORNEYS ATTEND MEDIATION OR NOT?

A. Every case is different.

B. The attorney must advise the other attorney if he or she plans on attending and should do so as soon as possible so that both attorneys’ schedules can be considered in scheduling mediation.

C. Generally, Mediators in the 1st Judicial District discourage the participation of attorneys in mediation and recommend instead that they invest that time and financial resources with their client prior to mediation to ensure that the client is fully prepared for mediation.

D. In the absence of an attorney, it allows the client an opportunity to choose when they individually choose to compromise as compared to when the attorney might recommend a compromise.

XI. WHAT STYLE OF MEDIATION ARE THE MEDIATORS USING?

A. Mediation styles include transformative, facilitative, caucus and hybrids.

B. Each county and district appears to be different. The 6th Judicial District tends to use transformative. Polk County tends to use caucus. Waterloo tends to use a hybrid.

XII. WHAT IS THE SUCCESS RATE OF MEDIATION?

A. Full and complete data is not available as some mediations result in partial settlement which prompts attorneys and parties to complete the settlement process without further involvement by the Mediator

B. Statistics in District 1A.

XIII. Q & A



Rooms 304-305


Why Mediate

1:30 p.m. - 2:30 p.m.

Presented by

Ben Arato Rob Tully Law Offices, P.C.,

West Des Moines, Iowa

1. Why mediate? Mediation can be a great tool for cases that involve clients who are nervous about going to trial, not only because of the mental strain involved, but out of a desire to keep their case quiet. Many clients are uncomfortable with litigation and view a trial as a very last resort.

2. You are more likely to settle the case if the insurance representative is physically present. No matter who the mediator is, they will be more effective if they are able to talk to the parties face to face. People are more easily persuaded in person rather than over the phone, and insurance representatives are no different.

3. The mediator matters. Picking the right mediator can be the answer to settlement you are looking for. A plaintiff is much more willing to settle his or her case if they like and respect the mediator. Insurance companies who agree to mediate are signaling that they are willing to settle the case. Sometimes they will refuse to use a specific mediator due to past experience or prejudice. Try to convince them that you need to be able to choose the mediator that is right for your client. Try to choose a mediator who fits the following criteria:

A. A mediator’s personality should match or compliment the client’s personality. Some mediators have a gruff approach, some have a soft approach. Choose a mediator that has the approach your client will relate to;

B. The mediator should be experienced in the type of case your client has. 4. Mediation minimizes risk. No matter how good you believe your case is, there is always the risk

that the jury just doesn’t see it the same way you do. In addition, the fact of the matter is most cases aren’t as rock solid as you’d like them to be. A lawyer’s job is to maximize his or her client’s recovery with the least amount of risk. The process of mediation, which is always confidential and cannot hurt your client at trial, is a risk free environment where your client gets to hear a neutral opinion on the case from the mediator.

5. Always be ready for trial. Hopefully, by the end of the mediation the insurance company has offered your client enough money so that not taking the offer puts the client at risk if they choose to go to trial. If the client declines the offer against your advice, you are prepared for trial regardless. However, sometimes the insurance company simply doesn’t see the light. Now you are able to tell your client that you are ready to take their case to court, and there is no risk in turning down the offer and proceeding to trial. Hopefully, you are right and the insurance company is wrong, but in the event you are wrong your client hasn’t lost anything, because there wasn’t an offer on the table that you could advise your client to accept.

The golden rule of mediation: If defendants believe they paid more than they wanted to and Plaintiffs think they didn't get as much as they wanted that's a good settlement.



Rooms 304-305


Team Approach to Collaborative Mediation

2:40 p.m. - 3:40 p.m.

Presented by

Kimberly Stamatelos Stamatelos & Tollakson West Des Moines, Iowa

Ashley Tollakson

Stamatelos & Tollakson West Des Moines, Iowa

Crystal Hemesath

515 Therapy and Consulting West Des Moines, Iowa

6/12/2016

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Team Approach to

Collaborative DivorceKIMBERLY STAMATELOS, J.D.

ASHLEY TOLLAKSON, J.D.

CRYSTAL HEMESATH, M.S., LMFT, LMHC

Divorce Trends

Marital instability marked the last half of the 20th century in America (Cherlin, 2010).

Divorce rates rose sharply in the 1960’s and 1970’s (Kelly, 2006).

Divorce declined slightly in the 1990’s (Sabatelli & Ripoll, 2004).

Although stable, divorce rates are currently high with a small decline from 2000-2014 (Centers for Disease Control and Prevention, 2016)

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Divorce Rates

The current lifetime probability is estimated between 40%-50%

(Cherlin, 2010).

1 in 2 marriages ending in dissolution is likely accurate when

permanent separations are also taken into account (Amato, 2010)

It is too soon to tell if divorce is declining – difficult to predict

divorce rates and trends, i.e. marriages are also declining (Schoen

& Canudas-Romo, 2006; Teachman, Tedrow, & Hall, 2006)

Factors Contributing to Divorce

Change in traditional values and norms of marriage (Sabatelli &

Ripoll, 2004)

Higher expectations for marriage based on love (Hurt, 2014; Kayser

1993)

Shift toward individual happiness (Amato, 2004)

Sexual revolution and feminist movement (Sabatelli & Ripoll, 2004)

6/12/2016

3

Past Marital Happiness

Until the middle of the 20th century, most marriages continued ‘till

death do us part’ - felt they had no choice (Hatfield & Rapson, 1996)

Marriages of the past were likely no happier (Sabatelli & Ripoll, 2004)

Families who veered from the traditional nuclear, two-parent family

were considered deviant (Amato, 2004)

Stigma, poverty, religious views, difficulty in obtaining a divorce, or fear

were reasons many did not divorce (Amato, 2004)

Romantic relationships are of great importance to most people -

depression, anxiety, and physical illness result from loss of romantic

relationships (Hatfield & Rapson, 1993b; Lebow, 2012; Means, 1991).

Adult relationship problems can lead to stress or MH issues for

parents, which can harm parenting quality and be

disadvantageous for children (Lamanna & Reidmann, 2012).

Research shows that protective factors can mitigate negative

outcomes of divorce for children (Kelly, 2012)

Divorce and Mental Health

6/12/2016

4

Discernment Counseling

Doherty, W. (2011, November/December). In or out. Psychotherapy Networker.

Bill Doherty, Ph.D. Professor, scholar, researcher, author. Director of

Marriage and Family Therapy Program, University of Minnesota.

http://discernmentcounseling.com/

Discernment Counseling Continued

1-5 session model, therapist works with couple individually and

together at each visit

New way to work with “mixed agenda” couples where one partner

is leaning in and the other is leaning out of the marriage

**Traditional marriage therapy is not effective in these cases

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5

Discernment Counseling Continued

Goals: Clarity and confidence about a direction for the marriage based on a deeper understanding of what has happened to the marriage and each individual’s contributions to the problems.

Decide to work on the marriage

Decide to divorce or separate

Decide to maintain status quo

About half of these couples decide to embark on intensive couples therapy and most of the other half decide to move directly to divorce, having come to better understand themselves and their relationship

Why is discernment counseling useful?

Couple may decide to save the marriage

There are collective, positive effects of a quality marriage (void of intense conflict and long-term dissatisfaction)

Higher levels of psychological, physical, and financial well-being (Blackman, Clayton, Glenn, Malone-Colon & Roberts, 2005; Nock, 2005)

Greater sense of life meaning, participate in multiple roles, healthier lifestyles, better healthcare, ability to live in safer neighborhoods (Hawkins & Booth, 2005).

Better social treatment and higher self-esteem (Nock, 2005)

Most children from divorce grow up to be happy and healthy adults, but it is generally agreed that being raised in two-parent, loving households is best (Amato, 2004; Kelly, 2012).

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Why is discernment counseling useful?

Reduces likelihood of repeating destructive patterns in future relationship

Increases understanding between partners/closure

Make better clients for divorce lawyers and mediators because they have worked on their emotional blockages and pain

Sets the stage for a “soft-landing” following divorce by working together

Models positive communication, increases protective factors for children (i.e. positive parenting and low conflict)

Provides known resources for future assistance (i.e. co-parent counseling, child specialist, marriage therapy, family therapy, divorce coach)

Contact Information

Crystal Hemesath, LMFT, LMHC

515 Therapy & Consulting, West Des Moines and Urbandale

Website: www.515therapy.com

Email: [email protected]

Phone: (515) 556-3668

mediation/ collaborative law track · mediation/ collaborative track wednesday, june 15 rooms...

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