This may ultimately create more disputes than it resolves, but the DNA testing laboratory INDENTIGENE is selling at-home paternity tests.

For only $29.99 (and $119 for the lab fee), you can find out once and for all who’s your daddy.

(Hat tip to Boing Boing Gadgets.)

A press release just crossed my desk for “Divorce Mediation: Myths & Facts,” an online radio show. Back in November, I explained how the show has managed to create some myths of its own — namely, that the best divorce mediators are lawyers.

An upcoming episode in March will cover “‘Certified’ Doesn’t Mean ‘Qualified’ - Choosing a Qualified Divorce Mediator”. I can’t wait to listen in, especially when the show mined a similar vein last November with “Choosing the Right Divorce Mediator” (in MP3 format), where you can tune in to hear aspersions heaped on the talents and expertise of mediators who are not attorneys. Look, I’m all for mediators doing everything they can to promote themselves and their work, but let’s not do it at the expense of fellow mediators, shall we?

So let’s clear some stuff up once and for all. Repeat after me:

Barack Obama is not a Muslim (and so what if he were?).

There were no weapons of mass destruction.

And you don’t have to be an attorney to be a competent divorce mediator.

David Levy, artificial intelligence expert and author of Love and Sex with Robots (no, I’m not making that up), in a recent interview with Scientific American predicts that humans one day will marry robots.

One observation about the need for disagreement in relationships caught my attention:

[Journalist:] Would people really want a robot that agreed with everything you wanted or were completely predictable?

[Levy:] I do think there is often a need for friction in relationships. You wouldn’t actually want a robot that does everything you want. Most people might want robots that sometimes say, “I don’t really want to do that,” that rejects certain requests from time to time. So you could program that in, the level of disagreement you want.

Which leaves me wondering how those disagreements will be handled. Do you simply reboot your partner? (Be honest now — how many of you have wished you could do that?)

On Valentine’s Day, romance is in the air.

But not for Charleston, West Virginia radio station WKLC. It’s holding a Valentine’s Day contest to give away a free divorce to one lucky couple.

There’s just a couple of problems. That free divorce — surprise, surprise — doesn’t include the services of a divorce mediator. And it may not be so free — the winner of the contest instead will only get 10 free hours of an attorney’s time.

Ten hours may only be enough to just get you started — especially if you consider the study the Boston Law Collaborative conducted of 199 divorce cases. It found that for divorcing couples, “[m]ediation was by far the least expensive option, with a median cost of $6,600, compared to $19,723 for a collaborative divorce, $26,830 for settlements negotiated by rival lawyers, and $77,746 for full-scale litigation.”

Anyone who has raised kids knows that there is no tougher negotiator than the average nine year old. Help has at last arrived for parents eager to negotiate more effectively with their own children.

The February issue of Negotiation offers tips to “Negotiate Better Relationships with Your Children” (PDF). Negotiation is a monthly newsletter produced by the Program on Negotiation at Harvard Law School. Learning to negotiate with your kids produces real benefits, including more cooperative children and more trust between parents and children:

Just as smart business negotiators avoid bullying tactics and undue concessions, relationship-centered parents engage in a problem-solving process that enhances cooperation and satisfaction for the entire family. Rather than pretending that conflict always can be avoided or behaving as though kids must be dominated, these parents teach their children to deal with conflict in productive ways.

A recent study shows that the upside of marital fighting is not just the makeup sex afterwards.

Researchers at the University of Michigan followed 192 couples over a 17-year period and discovered something interesting:

Couples in which both the husband and wife suppress their anger when one attacks the other die earlier than members of couples where one or both partners express their anger and resolve the conflict…

The study results suggest that good conflict resolution skills may be key, but the problem is that few people possess the proper training. According to the study’s lead author,

“When couples get together, one of their main jobs is reconciliation about conflict…Usually nobody is trained to do this. If they have good parents, they can imitate, that’s fine, but usually the couple is ignorant about the process of resolving conflict. The key matter is, when the conflict happens, how do you resolve it?”

The lesson? If you want to save your marriage and your health, learn conflict resolution skills.

It looks like the digital age has spawned a whole new range of problems that can mar marital bliss, according to “‘Til Tech Do Us Part“, a recent article in the Wall Street Journal. Blogging, email, and mix-ups involving Amazon.com accounts are among the perils that lie in wait for newlyweds.

Whether couples are faced with 21st century troubles or more traditional challenges like money or differences in parenting styles, there’s no doubt that marriage is not always a bed of roses–and even if it is, coping with the thorns isn’t easy.

According to this post by Dave Hoffman at Concurring Opinions, one entrepreneur has a novel solution: financial incentive in the form of marriage insurance with “a guaranteed, high return payout for achieving such a milestone as a 25th (Silver) wedding anniversary”.

Meanwhile, in the event that a marriage fails and divorce looms on the horizon, there’s divorce software designed to help couples negotiate the division of the marital estate, as Stephanie West Allen at Idealawg describes. Unfortunately, with the focus of the divorce software on compromise rather than collaboration, couples may miss more creative and mutually profitable ways of dividing assets, according to Stephanie’s analysis. A human actor assisting in the negotiations can stimulate a three-dimensional consideration of all the factors involved.

This means of course that mediators are by no means obsolete. If the question is, “Do you want to work it out?” mediators can still help people get to “I do”.

(Hat tips to Slash Dot for the link on tech troubles for the married, and to Blawg Review for the link to the post on divorce insurance.)

Retired attorney and mediator David Giacalone, justifiably honored last year by Blawg Review with the 2005 Creative Law Blog Award for f/k/a, a law blog blending poetry with punditry, is now founding editor and host of a new blog.

SHLEP: The Self-Help Law ExPress was created with the aim of empowering individuals to solve wherever possible legal problems themselves–a goal which mediators will recognize and applaud.

SHLEP explains its mission this way:

For more than two centuries, American consumers have been shlepping toward justice — they’ve been manacled to an expensive lawyer in order to solve a legal problem, or to protect, assert or defend their rights. Our courts have become costly, complicated, lawyer-centered bureaucracies, rather than the accessible, client-centered dispute resolution centers they should be…

The self-help law movement strives to give legal consumers the tools and assistance necessary to solve most of their legal problems themselves — if they choose — including, at times, representing themselves in court as pro se litigants. The movement and process has been led by courts that are being overwhelmed with unrepresented parties, and by consumer advocates who believe that fair and effective access to justice is a universal right that should finally be made a reality in 21st Century America…

SHLEP’s goal is to bring the benefits of a daily weblog to the Self-Help Law movement. We have assembled a Team of contributors with diverse expertise, skills and perspectives, to make it happen. Developments and news about self-help will be presented, and viewpoints expressed. In addition to creating or organizing background materials for those who want to find self-help resources, the shlep Team will attempt to keep readers informed of self-help resources available to the public and to professional providers of those services, of studies and reports on self-help law and related issues, of relevant symposia and meetings, and of the people and groups aiding (or obstructing) the movement.

Mediators will want to visit one post in particular: “Divorce mediation: mutual self-help,” which describes the benefits that mediation offers to divorcing couples and links to mediation resources.

Best of luck to the SHLEP team in this first-of-its-kind blog project. (With thanks to David Giacalone for sharing with me the link.)

The University of Minnesota has produced an online guide designed to assist families prevent and address disputes over estates. Who Gets Grandma’s Yellow Pie Plate offers information and resources to aid families in making tough, emotionally fraught decisions over the inheritance of personal property.

There are free articles available as well on this site, along with some quizzes to assess your estate planning preparedness.

Mediators, however, will come away disappointed. Although this excellent site offers useful material and resources, mediation was somehow omitted from a web site created to assist families prevent, reduce, and address conflicts over estate-related issues.

(Thanks to Joel Schoenmeyer, author of the Death and Taxes Blog, for the link.)

Anyone who has ever gotten married (or reads Dear Abby) knows only too well how many family feuds are sparked by wedding plans (which is probably why my husband and I eloped to Las Vegas). Battles can and do ensue over guest lists, menus, ceremonies, religious traditions, and who’s paying for what.

Stepping in to pour oil on troubled waters are wedding planning mediators who help couples and family members resolve thorny issues to prevent nuptial arguments from leading to divorce court.

(Thanks to my friend Bill Warters for kindly alerting me to this story.)

Technorati tags: conflict resolution, mediation

Family mediators will want to take note of a decision reported this week by Massachusetts Lawyers Weekly regarding the enforceability of premarital agreements in the Commonwealth.

In a case known as Eyster v. Pechenik, a Middlesex Probate and Family Court judge has ruled that a spouse can enforce a premarital agreement in his or her divorce even when the agreement has been drafted by the couple themselves without the assistance of counsel. The agreement will be enforced if there was full disclosure of each parties’ assets prior to its execution, and so long it is fair and reasonable when signed and fair and reasonable when subjected to a “second look” at the time of its enforcement.

According to Massachusetts Lawyers Weekly, the husband drafted the agreement after consulting articles from books, newspapers, and magazines, and both parties opted not to seek the advice of attorneys prior to signing it. Among other things, their agreement provided that property acquired prior to and during the marriage would remain with the party who acquired it. At the time of their divorce, the wife argued that the agreement was ambiguous and therefore unenforceable.

This stands as a cautionary tale not only for couples contemplating marriage but also for mediators who assist couples in negotiating the terms of premarital agreements. There is no doubt that premarital agreements, and the conversations that lead up to their creation, can be a useful means for couples to define how best to divide their assets upon death or divorce. Mediation can play an important role in that process, helping couples make those decisions together.

However, premarital agreements hold significant long-term legal consequences. And informed decision-making is of course integral to the mediation process. Mediators will therefore want to remind their clients of the importance of seeking independent legal advice before signing on the dotted line.

(The decision, alas, is not available for free online, although you can, if you wish, pay to have Massachusetts Lawyers Weekly fax it to you. Warning: MLW will charge you the exorbitant sum of $34.50 to do so. You can also read the decision on p. 35 of the print version of the March 27, 2006, edition of MLW.)

For divorced or separating parents, finding ways to come up with a workable visitation plan is tough enough when they live in close geographic proximity to each other. But it can be heartbreakingly frustrating for parents and children alike when many miles or even time zones lie between.

Mediators and attorneys who work with families and couples struggling with divorce may wish to explore Virtual Visitation, which offers innovative ways to stay connected through the use of digital technology.

For a primer on Virtual Visitation, stop by InternetVisitation.org, where you can watch a video to see two examples of Virtual Visitation in action, find information and updates on Virtual Visitation legislation, or learn how to get started with virtual visiting. You can even find a link to Virtual Families and Families, a blog which explores the wide range of applications for virtual visits.

As InternetVisitation.org cautions, Virtual Visitation should be used to supplement, not substitute for, face-to-face, quality time with loved ones. But it can be a great way to remain involved in the daily routines of children and other family members, regardless of time and distance.

In addition, here’s a link to “6 Ways to Make ‘Virtual Visitation’ Work“, which includes tips on creating a web page for your child as a means of sharing ideas and family news.

(Many thanks to Bob Ambrogi’s Law Sites for the link and the inspiration.)

A continuing fascination for me is the depiction of conflict and negotiation in popular culture. As I have discovered, while depictions of conflict are common, depictions of conflict resolution in the media are quite rare.

Back in March I reported here on “Families at War”, a British television series which exposes the dynamics and roots of family conflict and documents the efforts of specially selected families to resolve their differences under a mediator’s guidance.

Media-watching mediators may be interested to learn that plans are underway here in the U.S. to turn the camera’s lens on divorce mediation. Independent television producer Kate Hudec is working with Massachusetts mediator Diane Neumann to create a documentary which will explore the experience of divorce mediation.

Neumann is currently seeking a divorcing couple willing to participate in this first-of-its-kind project. Information and a contact form are available here.

In a recent article entitled The Company We Keep: ADR, tort reform, and the erosion of justice, I took up cudgels in defense of litigation and attorneys.

It was not unreasonable of me then to hope for a little professional courtesy from my fellow attorneys who might perhaps return the favor by expressing as much support for mediation as I did for litigation.

My hopes were dashed at a program I attended recently on divorce law practice (the sponsoring organization and the location of this event shall remain nameless).

One of the topics on the agenda was the use of mediation by divorcing couples. There was no mistaking the fact that the program panelists, all of them attorneys, had strong opinions about mediation, none of them especially favorable:

“Mediators are not formally licensed by the state. All they need to have is 30 hours of training,” cautioned one panelist.

“Mediation can make sense when there are parenting issues to be discussed,” said a second panelist, “but generally speaking mediation can be a big waste of time and money. There are just too many cases that aren’t appropriate for mediation.”

“Mediation makes no sense when one party has a domineering, overpowering style and is a far stronger negotiator than the other party,” said a third panelist.

“It’s a waste of time for me to review an agreement that a mediator has drafted,” complained another, referring to the small amount of billable hours involved, “and it’s frustrating that they didn’t come to me first before going to a mediator—I could have helped them prepare for mediation.”

It’s not as if these folks weren’t making some valid points. Yes, currently mediators are not licensed or certified by the state. Yes, mediation is not appropriate for every case. Yes, it can be a problem when the parties are not equal in terms of bargaining power. And, yes, it’s an issue when parties insist on making important decisions without consulting with attorneys or other professionals first.

It was the lack of balance and accuracy in what the panelists had to say about mediation that was so troubling. Therefore, I provide here the counterpoint that was missing from the panelists’ discussion:

First, while it is true that there is currently no formal licensing or credentialing of mediators, most of us, regardless of what kind of work we do, have substantially more than 30 hours of training under our belts. Many of us undergo many hours of advanced training and continuing education, are members of professional associations, and attend on a regular basis conferences, roundtable discussions, and other programs relevant to our practice to keep our skills and knowledge up-to-date.

There are numerous sources of ethical rules as well at both the national and local levels which guide our professional conduct. In addition, many of us bring to our work as mediators relevant experience and training from our professions of origin—law, social work, psychology, finance, education, and so on.

Secondly, while it is true that not every case is appropriate for mediation, no one knows that better than mediators themselves. We conduct thorough intake, carefully screen cases before accepting them, and spend substantial time educating prospective clients about the process long before the first session gets underway. We are always alert for signs of physical or emotional abuse, financial malfeasance, or a lack of good faith on the part of any of the parties. Our goal is to ensure that mediation is going to be a good fit for the clients and the dispute. Because mediation is voluntary for both the parties and the mediator, something we make sure that clients understand up front, a party can walk away from the table at any time, and a mediator can terminate the mediation if continuing the process would violate ethical rules or not be in the best interest of the disputants or of third parties not present at the mediation (children, for example).

Third, while parties at the negotiating table are not always equals in terms of bargaining power, sophistication, and knowledge, skilled mediators work hard to address power imbalances and make sure that all parties are able to negotiate effectively. We ask tough questions of all parties, making sure our clients examine both the short-term and long-term consequences of the choices they’re considering. And, if the disparity in power between the parties is so great that one party cannot participate meaningfully in the mediation process, then a mediator will end the mediation.

Finally, mediators are just as concerned as attorneys that parties make fully informed decisions. It’s one of the fundamental principles of mediation. Therefore, as part of the intake process in divorce mediation, mediators typically recommend that parties consult with attorneys at all phases of the mediation process—to speak with attorneys in preparation for the mediation, to seek legal advice before making decisions or commitments, and to have their attorneys review any memorandum of understanding or agreement that the mediator drafts before the parties sign it. In fact, mediators encourage parties to consult with other kinds of professionals as well, depending upon the advice and input that’s needed—this could include the involvement of accountants, financial planners, appraisers, therapists, and so on. And these professionals, attorneys included, may participate in the mediation, if the parties choose.

Being an attorney myself, I would prefer to think that this distrust of ADR that I witnessed at the program I attended was rooted in a lack of understanding of mediation, rather than a competitor’s concern that mediation could spirit business away from a thriving divorce law practice.

As a mediator, I believe that there is a place for all of us at the table.

Mediators can save a divorcing couple time and money, enabling them to identify their areas of agreement, narrow the issues for the attorneys to address, communicate better, and, in the case of families, help parents continue to be partners in raising children.

And attorneys can provide individuals going through divorce with the advice and guidance they need to make rational, informed choices that will make sense not just for today but for years to come.

The contributions that both attorneys and mediators bring can make the divorce process less stressful and painful, and more productive and positive, for the clients who go through it. That seems reason enough for us to recognize, not diminish, the value that each of us brings.