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Mediation Requires Knowledge and Skill

Question: My husband and I have been going through divorce mediation with a person whose name we were given by the court as an approved mediator

Question: My estranged husband and I have been going through mediation with a person whose name we were given by the court as an approved mediator. I have an attorney; my husband does not. Because of this, the mediator will not allow my lawyer to be with me and seems take affront that I want to talk with my lawyer about the progress of the mediation. He says that since my husband does not have a lawyer, my lawyer will gum up the process and preclude a successful settlement. To me, the mediation experience has been an expensive waste of time at $150 per hour. Is my experience unusual?

Question: My wife and I went through what we believed to be a good mediation with a man who treated the process as a business deal. Our lawyers were present or available throughout the mediation; however, the problem arose when, after the mediation had been completed and we reached an agreement that was reduced to writing by the mediator, our lawyers could not agree on the wording of the final document. This legal bickering has fruitlessly extended an otherwise good experience. How can we get off dead center and move through this unexpected glitch?

Answer: Mediation standards and licensing provisions for mediators, if they exist at all, vary from state to state. Generally speaking, a person who completes an approved 40 hour training course can become a court-approved mediator, and today, there are training courses available regularly throughout the United States. The Supreme Courts of most states have established or are in the process of promulgating rules concerning licensing and standards; however, progress in some states is slower than in others.

While mediation styles vary from mediator to mediator, generally speaking, mediators caucus with the parties and, where appropriate, with the parties and their lawyers and sometimes with the lawyers alone. A mediator who takes affront to the fact that a person is represented by an attorney should not be a mediator. In addition to the custody and children's issues, financial and tax matters are most important and should not be finalized without the assistance of lawyers and, in some instances, accountants and other professionals because mediators should not give legal or tax advice -- even if the mediator is a lawyer.

Reducing the mediation results to writing is quite another matter. Some say that should an agreement be reached through mediation, it should be reduced to writing on the spot, reviewed by the lawyers at that time, and signed. Why? Time has a way of dulling memories, and reflection on what has been agreed to may unravel the deal due to "buyer's remorse." Others have told us that as the mediation progresses and each matter is agreed upon, the mediator should dictate that part of the agreement. Once all issues have been completed, the final agreement is reviewed by the lawyers and signed.

Bottom Line: Mediation, and those who dispense it, should be subject to licensing, background, and educational requirements for the protection of the public, and litigants should become informed as possible in order to try to take advantage of this alternative to litigation.

Question: When my husband and I divorced early last year, the court awarded me alimony and child support. It took every penny he paid me and every penny I could earn for me and our children to live. Other than the taxes that were withheld from my salary, I never thought about income taxes and never made estimated payments because no one told me I had to. Then, when I began to prepare my tax return, I learned that I owed more than $3,000 because of my alimony, and I have no extra money to pay taxes. I can't borrow any more money. What can I do?

Answer: If you don't have the funds with which to pay the taxes you owe, you may want to ask the IRS to agree to accept installment payments. In order to do this, you should complete an Installment Request Form (IRS Form 9465) and attach it to your tax return. In the future, you should plan to pay estimated taxes on your alimony each quarter as required by law. It would probably be a good idea for you to seek the assistance of an accountant who can not only help you sort through your problems, but also move toward solutions that won't leave you caught short in the future.

Jan Collins is an editor and award-winning writer. Jan Warner is a matrimonial, tax, and elder law attorney. Both are based in Columbia, South Carolina.

Please send your questions by e-mail to janwarner@flyingsolo.com or by mail to P.O.Box 11704, Columbia, S.C. 29211.



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