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Using Mediation in the Adoption System

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Every year, people adopt children from around the world.  Adopted children may be infants or they may be older children who have been affected by tragedy or who have not grown up in the most ideal of circumstances.  For many adoptions, the biological parents may wish to maintain some contact with the child who is placed with adoptive parents.  This process can sometimes add complications to the mix.  Also, in some cases, older children may be interested in their roots and may want to reconnect with parents who made the difficult decision to place them for adoption.

Through open adoptions, the biological parents may be able to have some contact about the child that they placed for adoption.  In some situations, the biological parents may have a legal agreement for visitation.  In other cases, the biological parent may simply ask for a few pictures and updates throughout the year.  In some situations, these legal agreements or understandings may be challenged, which may provide a foundation for a legal battle.  Rather than battling the case out in court, some parties decide to go through the process of mediation to resolve the legal issues.

Mediation is a process led by a third-party neutral.  In adoption cases, the mediator may be a former social worker, educator, lawyer or judge who is familiar with family law.  The mediator talks to both parties who are in dispute and tries to understand their underlying motivations and interests.  He or she can often help bridge communication gaps and suggest ways that the parties may be able to resolve their dispute without having to subject the adopted child to a nasty court battle.  At the end of the process, an agreement is often reached that the parties helped to cultivate which sets out their understanding of the situation and how to proceed with their relationship.

The Changing Scope of Marijuana

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As time goes on, more individuals have come to accept marijuana as less of a hard drug and more as a product akin to cigarettes or alcohol. However, there is still a legal conflict between using marijuana and the potential illegality of this act. Some states have permitted the use of marijuana for recreational purposes while others only permit its legal use for medicinal purposes. Still other states continue to outlaw its use completely and it is still considered a drug under federal law.

Due to the differing treatments of marijuana, there are several ways that people and groups may decide to handle this issue. Individuals and groups may choose to make provisions related to the use of this substance as part of rental agreements. By having clearly laid out agreements, the parties can share their viewpoints on the use of this substances, establish safe parameters and discuss penalties for any violations.

Another context where the use of this substance may come into play is in the employment context. Employers may provide specific guidelines related to the use of this substance, whether this substance will be tested during drug assessments and whether there are any restrictions as to the use of this substance. One particular concern that employers may have is whether individuals partaking in this substance may be impaired when they are driving or otherwise conducting more dangerous activities for their employers that may expose them to liability. Clear agreements that set out the employer’s expectations and policies related to the use of this substance may provide clarity in these situations.

Individuals and groups who want to negotiate agreements related to the use or prohibition of this substance may decide to do so through mediation. If they are subject to penalty, mediation or arbitration may be able to help discern whether the policies were correctly followed and applied.

Keys to Mediating Marital Property Disputes

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After accumulating items for a potentially significant period of time, many times parties do not agree on how to split up their marital assets.  A mediator can help the parties reach a resolution outside of court that satisfies both parties’ interests.

Legal Tests

One effective method that a mediator uses is to explain the law and how the judge might rule on a particular issue given that law.  The parties can then compare this possibility with the certainty of whatever type of arrangement they may be able to work out among themselves.

Most states use equitable distribution to divide a couple’s property.  Under this set of rules, the judge is left with a lot of discretion to make a division of property that is fair to the parties.  Some judges and state laws may begin the analysis by assuming that an equal split is fair.  However, there may be factors that move the judge away from this point, such as the length of the marriage, the education of each party, the earning power of each party and the custody arrangement.  Some judges may simply order the sale of all of the property and a division of the proceeds.  Some states allow the court to award separate property.  Some states suggest that each spouse should receive at least one-third of the property while others prohibit a judge from driving a spouse into poverty due to the division.  In other states, community property standards apply.  These states divide the marital property equally.

Sentimental Value

Another important consideration in the mediation of property is the emotional attachment each party has to it.  While the court is not bogged down by this consideration, this aspect can be critical in successfully mediating the case.  A party may decide to forego his or her interest in a particular item that means less emotionally in exchange for an item that has a greater sentimental value.

ADR in LGBT Issues

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Alternative dispute resolution mechanisms like mediation and arbitration have been around for years. At the same time, LGBT issues have risen in number and focus over the last several decades. These two worlds have started to merge, allowing for a less contentious process of resolving disputes involving the LGBT community. Some issues that have been successfully handled through these pathways include:

Workplace Claims

The last several decades have brought about significant and influential cases in employment law. As a matter of course, many workplace claims alleging discrimination or other mistreatment are handled through mediation or arbitration. The confidentiality of the proceedings and the more intimate fashion of ADR are often desired qualities for plaintiffs and defendant employers. In some cases of this nature, new policies are instituted to help avoid potential discrimination in the future.

Benefit Claims

Although gay marriage was officially federalized in 2015, public benefits have been slow to respond, creating confusion around eligibility for particular state and federal benefits. Dates of eligibility are often contested as the legal nature of the relationship between the parties may have been at issue.

Family Law Matters

One of the areas ripest for ADR is family law matters. Often, the termination of a long-term LGBT relationship creates different issues than an opposite-sex marriage. Many LGBT couples may have been together for years without the benefit of marriage, or they may have only recently married after living together and accumulating property for years. The traditional equitable distribution or community property rules may not bring about a just result for a couple who have built up wealth together. There may also be complicated issues involving child custody if one of the individuals who stood in a parental role did not have a legal or a biological relationship with the child. In these situations, ADR may provide more appropriate arrangements and remedies than the legal system may.

Types of Domestic Relations Cases Handled in Mediation

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Mediation is an alternative way to resolve virtually any family law case.  Due to the often ongoing relationship between the parties and the personal matters at stake, many parties benefit from mediating their domestic relations cases including cases involving:

Divorce

Mediation is commonly requested as part of a divorce.  Some states require parents to go through mediation if their divorce involves minor children.  Divorce often involves a number of key issues and may be less expensive when most of the issues can be resolved without the court’s intervention.  A mediator is sometimes tasked with helping the parties decide how to divide their property in a fair manner.

Parenting Plan

Mediation may be able to help parents develop a parenting plan as part of their divorce or as a stand-alone plan.  Many states are abolishing the rigid structure of having a primary custodial parent and another parent who only has time every other weekend with their children in favor of carefully structured parenting plans that allow both parents meaningful access with their children.

Separation

A mediator can help the parties reach an amicable separation if they are not yet ready for a divorce. Having a mediator in place allows the parties to create some boundaries and structures around new living situations.  The parties can agree on how to split up certain assets, debts and income while they are separated.  They may also reach an agreement regarding spousal or child support during this transition period, which may sometimes last years.

Child Support

While all states have formulas in place to determine the proper amount of child support, these guidelines may not always be appropriate when unique circumstances are involved.  Parents may be able to make decisions about support that work better for their family, such as agreeing on post-secondary education or on expenses for a disabled child.

Determining Whether Mediation Is Appropriate for an Agricultural Dispute

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Mediation is a non-adversarial process that is an alternative to litigating a matter. The process seeks to get the parties to focus on working out their legal issue to avoid a costly and time-consuming court battle.

Mediation has been used for years to help resolve a number of agricultural disputes. Cities, states and federal agencies have developed programs to amicably resolve agricultural matters. Agricultural mediation may be requested by either party in a dispute involving agricultural loans or other creditors. Agricultural credit issues, crop insurance, disputes regarding pesticides, compliance with farm programs and water drainage issues may be other disputes that lead to mediation. Agricultural disputes may involve neighbor disputes, landlord/tenant disputes, labor disputes or even divorce issues regarding the farmland.

Nearly any type of civil legal dispute involving agriculture can be mediated. The disposition of the parties is the factor that is most relevant as to whether mediation will be successful. Parties who can come together as respectable agents working to resolve a legal issue even if they start as polar opposites can still successfully participate in mediation as long as they are open to the process and willing to consider alternative ways to resolve the dispute.

The mediator is responsible for helping the parties communicate better. He or she may talk privately to each party alone and then filter information to the other side. He or she will keep the parties informed of their progress and buffer settlement offers between them. He or she will try to empathize with each party and show an understanding of the topic at hand while also communicating the potential pitfalls and weaknesses in that party’s case so that he or she has a realistic idea of his or her position so that each party can make an informed decision about whether the case should be settled.

A New Way of Handling Maritime Legal Disputes: Mediation

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Maritime law is often complex and deals with a variety of difficult topics.  Parties may end up in a dispute regarding maritime contracts such as towage agreements or vessel charters.  Mediation provides a peaceful way that parties can resolve such disputes.

Mediation is founded on the principle that parties can work out their own legal dilemmas – with the help of a third party.  This third party is chosen by the parties, which already shows that the parties are able to agree to something since they must first agree on the mediator they select.  Mediators have various backgrounds.  Many are attorneys who split their time between mediation and litigation.  Sometimes former judges serve as mediators.  Non-attorneys can also serve as mediators, such as business contractors and other individuals who can bring specific subject matter knowledge to the table.

Mediation is a private and confidential process that promotes positive dialogue and understanding.  At the heart of many mediation sessions is the emphasis on having empathy and understanding of the other side’s position.  When each party is able to step back and evaluate the situation from the other’s perspective, the parties are often able to come together to reach a mutual agreement.

Because judges are bound by the laws and the legal process, there are often limited remedies that they can provide.  While a judge must evaluate objective criteria, mediators can often analyze subjective input and provide ideas for more creative ways to resolve a problem.  A mediator can point out the alternatives of not reaching a settlement through mediation, which often subjects both parties to potential liability and negative repercussions.  This explanation of alternatives often helps the parties focus on their mutual interests and on the task of settling their dispute.