Saturday, December 31, 2011

Welcome 2012: Out With the Old, In With the New!

Attorney and Mediator Victoria Pynchon tells a story of a student who went to study with a guru.

The Master invited the student to have tea.  He filled the student's cup.

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Then, a bit later, the Master refilled the same cup.   As he did so, the cup overflowed.

The student exclaimed, "Why did you overflow my cup?"

The Master replied, "To make room for the new, one must first get rid of the old."

As we enter 2012, what old ideas, preconceived notions, habits, and practices must we get rid of, to make way for the new? Have we even consciously thought about what we would like to take the place of the old status quo? What would we prefer to be the new state of being?

New Year's resolutions have a way of being short lived. Short lived, that is, if they are just poured on top of an old cup. To nurture our newest hopes, dreams, and habits, we must first make room for them.

In his book The Power of a Positive No, William Ury frames the issue in terms of a tree.  The roots of the tree are our deepest values, that we tap into to determine our goals and objectives.  The trunk of the tree consists of the major decisions we must make in order to focus on our goals.  One of the decisions we must make, is to “say no” to the things that don’t move us closer to our goal.  By saying “no” to some things, we pave the way to say “yes” to the right things for our lives.  We create a strong trunk that will support our efforts. 

Moving up from that foundation of what we’ve said “no” to, we reach the point where we can focus on what we say “yes” to.  The leaves of the tree are the fruit of our effort, so to speak.  The leaves are the results we see after we make the positive decision to say no to the un-important.   The power of the positive “no” is that it enables us to focus on the things we truly value.  While the book is designed as a text on negotiation, I found this analogy to apply much more broadly in helping me discern what to say “no” to in my life as well as in my negotiations. 

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In my own life, the past few years have been devoted to developing a law and mediation practice that reflects my unique values.  I decided that I wanted to have a peacemaking practice, a practice that enabled people in relationships to address challenging conflict in ways that are healthy, cost effective, and help them stay out of contested litigation.   Part of my “learning curve” has been to discern what potential clients  to say “no” to. 

Because mediation costs approximately 10% the cost of litigation, I’ve had some potential clients come to me who were only interested in the “cost” aspect of mediation.  They had no interest in finding solutions that were fair to their negotiating partner.   I’ve learned to screen out and say “no” to “cheap” clients on the front end.   For one thing, their mediation is likely to fall apart whenever they realize that my practice does not cut corners on finding measures of fairness.   If a husband earns ten times his wife’s income and she is giving up all rights to alimony, that may be a reasonable decision but I will want to know why.  If the husband has just been seeking a cheap way to dump his wife, the mediation will fall apart right there.   Secondly, a person who is not committed to reasonableness and fairness is just not an enjoyable person to work with.  So, I’m better off without them! 

I’ve also turned away potential clients when it appeared they wanted to seek emotional retribution through an abusive court process.   My bright line rule is that I won’t take a case where the parties want to go to court as a first resort. 

Both decisions have cost clients, and that’s not always an easy decision to make when one is starting a fledgling practice!   

But it has been a good decision.  The decision to say “no” to clients who are not committed to fairness has freed me up to devote my best quality energies to the folk who do care about fairness and who are concerned with finding what is “right”.  

I find that my typical “perfect client” is the person who calls me and says, “I went to see a lawyer, and he told me what to do, and I just can’t do that to my spouse.”  This person – the person who remains concerned what happens to his spouse (or brother or sister, business partner, or fellow parishioner in his church) --  is the person my practice is there to help.   My mediation practice gives this person an option that is simply not available to them in the adversarial system.   If I had never discerned this – if I had failed to say “no” to the “cheap” clients -- then I could never have focused on the “fair” clients. 

And if I had failed to take that step, I would set myself up to be nothing but the “cheap” alternative in a world of cheapness. 

That was last year’s decision, for me.   Now, what will I choose to work on this year?  What will you choose to work on? 

This is a journey I hope we will share together in the coming year.  Please continue to share tea on my blog, and let’s see where the journey leads! 

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Sarah's 22nd Birthday 008

Cha Dao!

The two Chinese characters on my little tea table stand for the word “tea” and the word “dao”. Cha means tea, and the word “dao” means to arrive. Thus, a literal translation would be, “tea time!”

 

However, there is more to the meaning than this!  My Daoist friends tell me that this character for “dao” is also the word used to connote seeking the correct path, as in “Dao” (or Tao as it is sometimes spelled in English) .   Let us be mindful in this upcoming year, and seek a right path for 2012! 

 

P.S.  If you’re interested in learning more about my law and mediation practice, please visit my web page at http://www.JustMediationLLC.com 

 

 

A Bad Day In Mediation is Better than a Good Day in Litigation, Part II

In my last blog post I wrote some reasons why I quip, “A bad day in mediation is better than a good day in litigation.”  There are exceptions to the rule.  There are cases which should not be resolved through mediation.  But largely, mediation clients report a higher rate of satisfaction with the outcome of their divorce.  A concrete example involves a couple I mediated for some time ago. 

We were just finalizing the last aspects of their divorce agreement.  Their negotiation, over a period of months, had gone relatively smoothly. Both parties were committed to fairness and civility in their divorce process, and both also wanted to keep the impact on their children as small as possible. Each was willing to compromise and help find ways to lessen negative impacts on the other.

On the other hand, their task of parting ways had not been easy, financially or emotionally. Namely, there wasn’t nearly enough money to support two separate households on a middle class standard. Nor did they have significant savings or retirement to share. This meant that both were facing an even more uncertain future.

As they parted ways, even acting as a team and working to try and stretch their budgets, each one was going to come up a bit short of what they really needed. The final negotiations were intense. Finally, after several hours of discussions and revisions, going over details and crunching numbers with a neutral financial analyst, a settlement was reached that everyone felt would be adequate and fair.

This settlement was probably the best, most fair, settlement anyone could have come up with. By enabling this couple to work together, and also using appropriate professional resources, mediation actually enabled this couple to achieve a much better settlement for both of them than would have been possible had they been in adversarial camps.   Eliminating the cost of contested litigation had saved tens of thousands of dollars, and then they were also able to work as a team to employ some tax planning and structure their settlement to maximize benefit overall.  So while the future may have looked sparse, it looked a lot better than the scorched earth they would have been facing if they had litigated rather than mediated.  

bombed-village-medium by Mia Farrow

All in all, it was a resounding success in terms of result. The agreement was reviewed, signed, and copied.  When I came back in the room, everyone was relieved that it was over. Including me. I was so happy that I made the comment that now we needed to have a glass of champagne.

Wrong thing to say.

I looked up, and one of the parties was blinking rapidly. I noticed a quivering lip and shaking hand. Clearly, losing their marriage, being reduced to a substantially lower standard of living, having to sell their home, and having their entire life narrative turned up on its end and shaken like a salt shaker, was not something they felt should be celebrated with a glass of champagne. This person told me in no uncertain terms that they didn’t think this was any kind of event to celebrate with champagne. And truly, how insensitive of me. I apologized.

Yet on the other hand, even if I said it in the wrong way, at the wrong place, and in the wrong time, there was still much to celebrate.  The parties had succeeded in separating their lives financially and soon-to-be legally. They achieved a property settlement anyone would think was fair. They arranged their finances so both spouses would have what they needed to get by, even if their budgets would be tight. They did not spent $40,000 on litigation. And they were still sitting in the same room together, able to cooperate and have a civil conversation, even agree on continued parenting arrangements and dovetailed estate plans. 

Although this ending was very different from how that spouse had previously dreamed or envisioned their life would be, it was so much better than could be achieved by way of the other divorce alternatives.

A bad day in mediation is, still, better than a good day in litigation!

Perhaps sometime in their future, they might consider raising a toast to the good years they had together, the children they continue to share, and a parting that was less damaging.  Who knows, perhaps someday they’ll even be able to raise a glass not only to their marriage, but also to a divorce process that enabled them to remain friends through the end.   By taking the high road and by seeking win-win solutions, this couple made their world and their future – even their broken world – a better place. That is worth serious applause. It is even worth celebrating.

I can’t take away the fact that divorce is sad and painful.  But it doesn’t have to be as bad as litigation can make it.  My goal is to enable my clients to rewrite the story of their marriage so that it has a happier ending.   A good day for me, is when that happens. Thankfully, and believe it or not, they happen often. That’s why I love my job.

 

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Saturday, December 17, 2011

A Bad Day in Mediation is Better Than a Good Day In Litigation! (Part 1)

Occasionally, things happen that remind me I am not perfect.  Today was one of those days.   At the dinner table one night recently, I made some snide comment about some celebrity personality featured in the news.  My daughter gave one of those exasperated replies, “Mom!”  When I looked at her with a questioning look she said, “You’re supposed to be a MEDIATOR!” 
The heart of mediation is to be able to help warring parties see the other side, to instill a bit of communication and compassion.  Obviously, I was not speaking in a way that would facilitate either communication or compassion.   Falling short.
Compassion.  Ah.  The challenge.  The challenge of putting myself into the other person’s experience, to be fully present for them, and to help them communicate and find ways of having their needs understood and met in situations involving conflict.  Fully present means to really listen, to really attend to what someone is saying.  Fully present means to see that party to a conflict as valuable for who they are, to hear and grasp the full meaning of their story and what they are trying to communicate.   For when communication is fully facilitated, most often people begin to understand more what the conflict is really about and then to be able to work together to find ways to meet the most basic needs of each.  Sometimes, it is truly just about numbers or just about compromise.  But most of the time, actually, the parties in my practice actually do engage in what we call “conflict transformation”. 
What is “conflict transformation,” you ask? 
By hearing each other fully, parties are enabled to transform the way they experience and respond to conflict.   When parties to a conflict are able to see and hear each other fully, and even to understand themselves better, they are often able to get beyond the superficial and the posturing, to address much deeper needs.  Often there really is a transformation – an “aha” moment --  that opens the floodgates of understanding, paves the way for change, and makes the idea merely of “compromise” or “settlement” seem trite.  The conflict can then be addressed at a much deeper, and more satisfying, level. 
Yes, the mediator is needed.  People can’t really get beyond it themselves. 
When communication has broken down between parties, when they are mired in their own un-articulated feelings and anxieties and needs. When anger is swirling like a cloud and past hurts invade memories like Trojan horse warriors, the presence of a mediator is essential.  Fully present for each person, I act as a bridge and as a facilitator. 
Yes, sometimes I fall short of that goal, as my daughter reminds me.  But even when it’s not perfect, when I fall short, I still think mediation is better than the alternatives!    
But remember how they say, “a bad day fishing is better than a good day at the office”?  Well, here’s another one:

A bad day in mediation is better than a good day in litigation! 

Have you ever been in litigation? 

To the participants, it’s extremely disempowering.  As soon as the case is turned over to the lawyer, the party loses control.  It’s not the lawyer’s fault, it’s because of the way the system operates.  Now that you are in litigation mode, everything you say could be misconstrued or used against you.  Therefore, all communication must be delegated to the lawyers. The lawyers decide how to use each piece of information to their strategic advantage.  The lawyers research and are governed by “the law,” which is really nothing more than a standard someone set as being fair in another case somewhere else, which may or may not bear close resemblance to your case.  There is no more opportunity for genuine communication, for healing, for working out truly win-win solutions.  The lawyers think in terms of solutions a court could impose, which are relatively limited.   Courts can order money damage and “specific performance” of some tasks, not much more.  Gone is the opportunity for solutions that come from the heart.  Not to mention, all of this lawyering costs money.  For each action of your lawyer, there is an opposite reaction from the other lawyer, and so on.  So costs escalate.  The lawyers love to score points by surprising the other side.  That doesn’t build relationships, either.   And then, there’s the worst part.  You don’t really know in advance what the judge will do.  Somebody will “win,” and somebody will “lose”.  Will it be you?  What will a total stranger decide about your case, based on a bit of information that passed through the gamesmanship called “rules of evidence”?   Could that lack of certainty be the reason people in litigation don’t sleep well at night, for months on end?  And when the gavel does fall, feelings are not resolved.  Instead, all that has happened is that the lid has been nailed down on the coffin of the conflict.  Feelings and needs have not been communicated.  Underlying needs and concerns have not been addressed.  But there is “resolution”.  People are not killing each other.  It’s better than nothing.  But still, I say …

A BAD DAY IN MEDIATION, IS BETTER THAN A GOOD DAY IN LITIGATION! 

sarah sunrise This winter sunrise photo was taken by my daughter.  The symbolism, for me, is that even on a bleak, cold, winter day, there is still beauty in a new sunrise, in a new opportunity, and a new beginning.

Friday, December 2, 2011

The Top 5 Regrets of People Who Are Dying

Blogger Bronnie Ware, who works with people who are dying, recently wrote a book called The Top Five Regrets of the Dying: A Life Transformed by the Dearly Departing.

THE TOP FIVE REGRETS OF THE DYING: A Life Transformed by the Dearly Departing

Ware’s memoir is a poignant reminder to all of us that we need to have a goal.  Namely, we should strive for the goal that at the end of our life, we will be able to say we have lived a life that focused on what is most dear and important to us.   After all, as the saying goes, “Days are long, but life is short.” 

Here is a shortened version of the list of regrets: 

1. I wish I'd had the courage to live a life true to myself, not the life others expected of me.

2. I wish I hadn’t worked so hard.

3. I wish I'd had the courage to express my feelings.

4. I wish I had stayed in touch with my friends.

5. I wish that I had let myself be happier.

This leads to a question.  To have no regrets in your own life at the end, how might you need to be living today?  Are there things that need to be changed to achieve your ultimate goals for your life? 

On a personal note, I’m glad I altered the trajectory of my life in order to live a life that was more in keeping with my values as a peacemaker.  Since hanging my solo shingle as a mediator and attorney, I am also very gratified for ways that I have enabled some of my clients to live their lives in ways that brought more peace to themselves and their families.  I’ve been able to do this in two primary ways. 

In Elder Law, I’m happy to have been able to help clients arrange their affairs so that essential life (and death) transitions are more peaceful.   I’m not happy when a client dies, of course, but it has been a comforting thought to me when I’ve known that a client’s affairs were well ordered and that no terrible messes awaited their bereaved family members. 

In Family Law, I’ve been able to help families – especially divorcing couples -- rearrange their relationships so that endings are happier.  Sometimes that takes the form of a child being adopted into their “forever home,” while other times that takes the form of helping divorcing parents forge a separation agreement that will help them cooperate as parents even after they are no longer married to one another.   And even in cases where there are no children involved, I feel that mediation of divorce has enabled clients to get through a terrible life crisis with less trauma. 

It took me years and years to gather the courage to buck the mainstream and forge a path as a peacemaking attorney.  And still, I am outside the mainstream of legal practice.  It has been challenging for me, personally, to navigate a path where few have gone before, outside the mainstream of the adversarial role traditionally expected of attorneys.  When I was young, I lacked self confidence to crash through into a totally uncharted and new field of mediation.  I heard about mediation and became passionate about the theory of conflict transformation when I was in my early ‘20’s.  However, I listened to so many other voices telling me it was impossible to be a mediator.  

When I was first out of law school, in the early 1980’s, mediation was a brand new concept.  No lawyer I worked with had ever heard of mediation.  My mentors told me it would be impossible to forge a career as a mediator:  the ethical hurdles for attorneys were quite high (due to the duty of zealous advocacy and dangers from waiver of attorney client privilege); clients would never pay for mediation; it’s just not how things are done; people need a zealous advocate to ensure that their rights are asserted.   I listened to the voices of people who, though surely wiser than myself, were speaking a narrative that was more true for them in their time than for me in my time.  Gathering the courage to break out of the adversarial legal paradigm was an important stride that took me more than two more decades to achieve. 

My peacemaking practice is still out of the mainstream.  In fact, it’s absolutely not politically correct to admit to being a peacemaker.  It’s not just that ideas like peacemaking and conflict transformation are too touchy feely.  There are still attorneys who openly scoff at the idea even of facilitative mediation.   Just last week, one responded to a tweet of mine (promoting dialogue among conflicted parties) with the retort, “Conflict enables dialogue like syphilis enables penicillin.” 

I’m happy that I can now have my own peace in saying that mediation is definitely not appropriate for everyone.   Offering mediation to someone who ridicules the concept of finding peace is like casting pearls before swine.   But for those individuals who earnestly do seek peace, mediation can be a blessing and a godsend. 

Guidance from a peacemaker offers hope of transformation of conflict into opportunity for increased understanding and cooperation.  And when that happens, I am the fortunate one who is blessed to become an instrument of that peace:  a gift that happens sometimes, somehow, and through some measure of Grace given to me by virtue of training, talent, and trust from my clients. 

In the sense of now walking a path more true to my calling, even if it is outside the mainstream, I am really glad that I took a turn in life to follow this calling. 

Among the things that dying people regret, bucking the mainstream is just item number one on this list.  There are also four more!  As we enter the end of 2011 and look forward to the upcoming year, I propose that each of us look at this list  and think how each of us can arrange our lives to feel as good as possible about how we have spent our lives, when we reach the end of our days.  

A link to Ware’s blog post about her book is HERE.

 

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Saturday, November 19, 2011

On This Day in 1863 …

Abraham Lincoln spoke thusly at Gettysburg:

Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation, so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.


But, in a larger sense, we can not dedicate, we can not consecrate, we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here.

It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion — that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.

Tuesday, November 8, 2011

Does Nonviolent Direct Action Work? Yes.

I heard a rumor today that the term “occupy” has now been blocked from internet searches in China, thanks to the “occupy Wall Street” movement in the USA.  This, along with all of the protests associated with what is now known as the Arab Spring, seems to have left the Chinese government just a bit concerned.  Is there a reason to be concerned?  Maybe. 

Not every revolution is successful.  However, nonviolent revolutions have about double the success rate of those marked by violent means.   The rates of success were documented in a study by Maria J. Stephan and Erica Chenoweth, "Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict." International Security 33, no. 1 (Summer 2008): 7-44. 

According to Stephan and Chenoweth, of 323 violent and nonviolent movements between 1900 and 2006, 53% of the nonviolent ones succeeded as compared to only 26% of the violent ones. What’s even more telling is that when the movements were repressed, the nonviolent movements were 6 times more likely to succeed.

The article can be accessed at the following link:  http://belfercenter.ksg.harvard.edu/files/IS3301_pp007-044_Stephan_Chenoweth.pdf

 

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The Pink Panzer

 

 

Monday, August 15, 2011

Help In Preventing Foreclosure

I wrote the post that follows almost two years ago, soon after I “hung a shingle” as a solo mediator.   In some parts of the country, mediation has been used very successfully to help homeowners and lenders negotiate terms that help avoid foreclosure.  I thought of foreclosure mediation as an obvious example of a potential win-win for both homeowners and the lender:  the homeowner gets to stay in the home, and the lender doesn’t have to spend $20,000 repossessing a house and then re-selling a distressed home in a buyer’s market.  Unfortunately, not everyone else saw it that way.  Groups representing homeowners already seem to see mediation as an incursion into their turf.  Why would a homeowner need a mediator, when they have a representative?  Lenders are being represented by law firms that are getting paid by the hour or by the case.  The law firms have nothing to gain from mediation.  Indeed, it makes it more complicated for them because there’s an added issue.  Many home loans were packaged and resold, and there may be 10 or more “stakeholders” on the side of the lender.  It’s not that attorneys for lenders are evil.  Rather, mediation creates a huge logistical challenge for the attorney representing the lender to get all their constituents to the negotiating table.  Because of this latter challenge, in fact, the success of foreclosure programs throughout the USA depends largely on the “clout” built into the foreclosure process.  If lenders are not required to participate in mediation, with strong enforcement of that requirement through fines for example, mediation is not likely to be successful. 

 

Well, that’s a long explanation, but the long and short of it is that I do not do foreclosure mediation.   There is no requirement of mediation prior to foreclosure, and lenders will not voluntarily mediate, and agencies representing homeowners see no value in mediation.  For these reasons, there is no demand for my services as a mediator in foreclosure actions.  Moreover, it takes special training that I do not have.  What I will offer, however, this article, which has links to resources for homeowners who are behind on payments and facing the possibility of foreclosure.

 

Here, then, is the reprint of an article I originally wrote on my blog in January of 2010: 

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Are you unable to make the payments on your home loan?  Are you confused about what to do?  Are emotions clouding your judgment and making it difficult for you to talk about it to your mortgage company?  If so, you are not alone.  Nationwide, about one in six families is behind on their mortgage.

Facing potential loss of  your home may also be a very emotional experience.  It may, simply, be difficult to face this issue.  However, it's important not to ignore the problem, because it will not go away.  If foreclosure proceedings are brought against you, the wheels have been set in motion to evict you from your home.  You must develop a "Plan B"!

What is a reasonable Plan B for a person who cannot make their mortgage payments? There are some steps you should take immediately.  First, assess realistically whether it will ever be possible for you to meet the obligation, under any circumstances.  A credit counseling agency may be able to assist you with this assessment. (Click HERE for link to HUD approved programs in  your state.  If you are in South Carolina, the link is HERE.)

There are federal programs for distressed homeowners (see links, HERE).  While helpful for some, these are less useful for others.

There are also some facts which may be important to your lender:  Can you show that you would be able to make payments if (1) the debt were restructured, (2) if the interest rate were lower, (3) if penalties were forgiven, (4) if any missed payments were tacked onto the end of the loan or spaced out over a period of time?  Also, can you prove to the bank that you will have ability to meet the restructured terms?  Can you produce income statements and a budget that shows you could do it?  There are many other options, as well, which are more detailed and which are beyond the scope of this article.

The worst thing you can do is to ignore this problem!  Your first step is to call either your lender or a credit counseling agency who can speak with your lender on your behalf.  Put your best foot forward, and give it a shot.

A lawyer recently told me, "By the time these cases come to mediation, the homeowner is nine or ten months in arrears, and there is just too much money owed.  The homeowner can't come up with the amount of money the bank needs to stop foreclosure."  Do not, do NOT wait nine months to talk to the bank!  Do not wait two months.  If possible, work things out with the bank so that you put your finger in the dike before you are even late on one payment.  Taking preventive measures may save more than your house, it may save your credit report as well.

It may be that talking with the bank seems too hard for you to do on your own.  Perhaps it is very emotional, or perhaps confusing.  Or perhaps the mortgagee doesn't seem willing to talk or talks break down.  If so, then you may wish to engage an attorney to assist you.

In South Carolina, a good resource to find an attorney who represents parties in foreclosure is through the S.C. Bar Lawyer Referral Service (click HERE).  If you don't have funds to pay for an attorney, you may also try South Carolina Legal Services.  (To qualify for help from SCLS, your income cannot be greater than 125% of the federal poverty level.)    Additional counseling agencies for South Carolina are also listed HERE.

*** [here the original article discussed mediation in foreclosure cases]

The most important thing is this:  You must not just sit there and wait for your house to be foreclosed.  Mediation is successful in somewhere between 1/5 (New Jersey) and 3/4 (Philadelphia, Connecticut) of cases.  Perhaps this seems like a discouraging statistic.  Yet, it's better than nothing.   Doing nothing will result closer to a 100% probability of your being evicted from your home.  Moreover, even if you cannot meet the obligation and must give the house back to the bank, there is a possibility that you may qualify for additional avenues that may help save your credit or cushion the financial blow of having to move.  (See resources HERE.)  These options are called a "graceful exit," and may be better for both parties than the alternative of a sheriff's eviction and judicial sale.  (For example, see article, HERE)

Whether you consult with an attorney, with a mediator, or with both, don't wait until you are many months in arrears to do so.  Waiting just makes the problems -- and the size of the missed payments -- all the bigger.  Talking may help prevent foreclosure.  Mediation helps the talking.  If you need help, call someone today.

[caption id="attachment_861" align="alignright" width="300" caption="Generally speaking, your proposal to prevent foreclosure must show some realistic way you can repay the debt if it is restructured"][/caption]

Important:  This article is for educational use and represents my opinion only.  Please understand that this blog is not intended as legal advice for your particular case. Nothing about this blog makes me your lawyer. Nor can I answer your particular legal problems. If you have a legal problem, you need to hire an attorney.

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Tuesday, August 9, 2011

What Is Peace?

Peace is not just a "response". Peace is an opposite force for good as against evil. Peace is the embodiment of compassion, and in human life is the active application of the Golden Rule. Jesus said (in Matthew 22:37-40),

'Love the Lord your God with all your heart and with all your soul and with all your mind. This is the first and greatest commandment. And the second is like it: 'Love your neighbor as yourself.' All the Law and the Prophets hang on these two commandments.

Peacemaking, or peacebuilding, is the active pursuit of this commandment, extended into the world through our actions without hesitation or reservation, and peace is also the fruit of that activity.

Florida Sunset Becky Leone

This Florida sunset was photographed by my high school friend,

Becky Leone

 

 

Monday, August 8, 2011

Register Now for September 23rd–25th Conference!

 

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RESTORING COMMUNITY IN A BROKEN WORLD

A Peacebuilding Conference September 23 – 25, 2011

Racial reconciliation, tribal warfare, conflicted congregations, crime victims, shell shocked soldiers, and family feuds -- what do all these have in common?

A need for healing

Come learn some explicit approaches and techniques that will help professionals and lay people alike as they seek to build community and restore a sense of wholeness to individuals, families, and churches in need of reconciliation.

Friday evening, Saturday all day workshops, and Sunday morning worship includes two meals together (Attendees may register for Saturday only).

Professional Continuing Education Credit will be available for Attorneys, Licensed Professional Social Workers, and Clinical Psychologists, for a nominal fee.

Nonviolent Communication: The Rev. Theresa Latini (Luther Seminary), a Presbyterian pastor and certified trainer in NVC, will introduce the basic concepts of this method of communicating that will improve every aspect of your interpersonal relationships.

Restorative Circles: Mikhail Lyubansky, who has studied Restorative Circles with internationally known Dominic Barter, will introduce the theory and method of this community-owned restorative practice that was developed by Barter and his associates in the favelas of Brazil.

STAR Model of Trauma Healing: Elaine Zook Barge, Director for Strategies for Trauma Awareness and Resilience at the Center for Justice and Peacebuilding at Eastern Mennonite University, will introduce participants to the STAR method for trauma healing

Greensboro Truth and Reconciliation Commission: The Rev. Nelson Johnson and the Rev. Joyce Johnson will share their experience with the Greensboro Massacre and the resulting Truth and Reconciliation Commission they founded which has now won international recognition and awards.

The work of the Presbyterian Church in Sudan: The Rev. Peter Tibi, a Visiting International Peacemaker of the Presbyterian Church, will share his work among tribal warriors in South Sudan, the world’s newest country.

SPONSORED BY THE PEACEMAKING COMMITTEE FOR TRINITY PRESBYTERY

REGISTER ONLINE  HERE

Thursday, June 30, 2011

The Baby and the Bathwater

aptopix-mine-explosion

The picture you see was taken from a blog post about a coal mine explosion that occurred on April 6, 2010.  It’s alleged that Massey Energy, owner of the mine, concealed records of safety defects from government regulators. 

Crash! The sound of blasted rock and screams echoed through the cavern. The miners and I, we ran to the sound. Rubble, and debris filled the room, as black dust burnt our eyes. The foul stench of methane numbed my senses, as the taste of iron filled my mouth. Suddenly, a thick wave of heat overwhelmed me.

To see how this story ends, click HERE.

But the story, really, is only just beginning.  The rest of the story is about what happens next.   Who will win, the coal miners, or the company?  Will we continue to have noxious government regulations controlling every aspect of the coal mine and making it impossible to make a profit?  Will we throw out the regulations and, instead, look the other way when mine explosions cost lives? 

So, yeah, this post is about the very boring subject of government regulations. 

What role should government take in our lives, and what is the role of the people in that decision?   There is a serious political agenda of de-regulating all sorts of matters that were previously controlled by government.  Is this a good idea? 

Beginning with Reagan’s deregulation of the banking and airline industries, and continuing on through today’s Tea Party and Libertarian demands to dismantle government and get government out of people’s lives.  When people advocated getting rid of “government programs,” do they realize what they really mean by that?

I recently heard of someone complaining about “government programs,” only to find out that he was complaining about the existence of taxes from a local government sewer authority.  Now, do we really want to eliminate public sewer services in cities?  Doesn’t it seem that these are offered for a reason? 

I believe that today people are forgetting that the reason behind those damn government regulations, is that the alternative can be worse. 

If you recall the plague that decimated the population of Athens, Greece, as described by Thucydides, I’m sure you’ll remember that it was spread by the nasty things that were flowing through the open sewers.

 

 

 

Photograph of

Athenian sewer, which was open to the air like a canal.  Photo is from a web page, HERE 



AncientAgora

Is this what we want for our culture, or no sewers at all?

Of course, they say that people who don’t know their history, are bound to repeat it.  

 




This is a painting which depicts the plague of Naples, source is HERE

 

I don’t know about you, but I want good government, not gutted government.  

I’d prefer not to die from Plague, or cholera, or other nasty things we humans catch when we live around each other with no sanitation.  And I don’t want men to die in unsafe coal mines, either, even if imposing safety regulations would cause the coal mine to shut down.  Do you? 

There’s a reason for “government”. There’s a reason for safety regulations in coal mines, just as there is a reason for OSHA regulations, or for the FDA, or for the USDA.   My view is that we need to make the regulations better, make government better, not just throw the baby out with the bathwater.    However, this requires a bit more sophisticated analysis than just "yes" or "no", "black" or "white". 

It also means we must engage in conversation with the “other side”.  We need to listen to each other, balance interests, and find a middle way.   

Too bad that today’s partisan politics is the opposite of what we need.  Today’s political climate is built on the adrenaline of the news environment.  Every story must be shocking.  Every public policy argument must be a drama. 

To satisfy the demand for political discourse that is as easy to understand as a soap opera, cartoonishly drawn arguments, caricatures of any reality,  are pitted against one another, with a winner triumphing over a loser in a take-no-prisoners battle over policy.  And of course then the loser gets back in power by proving that the other side’s policy is a failure.  How?  By sabotaging it.  

How can America get back to democracy?  How do we get back to values of decency and fair play?  How do we get back to reasonable public policy, policy that puts regulations in place that protect workers’ lives and then enforces those regulations, without placing unreasonable burdens on business? 

This will be a major challenge, not only if we are to survive as a nation but if humans are to survive as a thriving presence on our planet. 

At one time, when there were fewer people, problems in one area didn’t necessarily spill over to affect problems in another.  We all had plenty of land and the oceans were large to absorb our wars and pollution.  But no longer. 

War refugees flow across international borders to destabilize governments on either side, pollution crosses international boundaries and destroys ecosystems of entire oceans. 

There is no longer room in the earth for cowboys.  We all live in a crowded neighborhood. 

So now, let’s figure out how to get along. 

Thursday, June 23, 2011

Restorative Justice Part IV

Restorative Justice involves healing tears in the fabric of community.  The theory of restorative justice is not to be “soft on crime” but rather to hold the offender accountable in a way that has the possibility of transforming the offender’s outlook.  In the USA, some of the possible outcomes of a restorative approach to justice include apology, restitution, community service, and referrals to therapy.  In other countries, the range of possibilities can be larger, including doing whatever it takes to make the victim as whole as possible again. 

The justice methods to implement restorative justice, or practices to implement it, are called (drum roll) Restorative Practices.  Restorative Practices include such things as Restorative Circles and Truth and Reconciliation Commissions.   I was excited to learn that Prison Fellowship runs a Restorative Circle process through its Sycamore Tree project. 

Unfortunately, as I attempted to find information about the Sycamore Tree Project in the USA, I learned that in the USA, Restorative Practices are hampered by victim offender laws that prohibit practices that enable contact between victims and offenders.  In other words, while other countries in the world are running full throttle toward implementation of these types of programs, the USA is handicapped from implementing cutting edge justice practices on account of our own laws.  Still, some innovative programs are able to work around these barriers.   In one such program, HERE, the case is referred into a restorative process before it ever enters the “justice system”.  Restorative Justice also is hampered by a lack of understanding about what it is.  In the article I just cited, for example, no judge has ever made a referral into the program.

When we say “justice,” we could mean any number of things.  I urge people to think for yourself, what do you mean when you think of the concept of “justice”?  Do you think it means purely revenge, or does it mean something more?  If you were a victim, wouldn’t it be more satisfying to have the offender apologize, repent, and rebuild your house? 

Just think about it. 

Sunday, June 12, 2011

Social Media for Lawyers: An Ethics Primer

Caveats and disclaimers:  Since I’m a blogger and an attorney, I’m interested in this stuff.  It’s only relevant to attorneys.  I compiled this for my own use and am now sharing it.  To my fellow lawyers: Of course this is just a beginning of the conversation about what is permissible and not, use it as a starting point for your own research.  Please give appropriate credit if you do use it in later written materials! 

THE GENERAL RULE:  “WHEN IN DOUBT, LEAVE IT OUT”

ADVERTISING

Warning area: web site, blog, Facebook, tweets, Craigslist, everything

Issue:  Is this communication commercial speech?  If not, the state does not have authority to regulate it. If it is commercial speech, the rules of professional conduct apply. Commercial speech is that which beckons business or proposes a commercial transaction.  What if the content does not beckon business, but the purpose of the communication is to attract clients? 

Texans Against Censorship, Inc. v. State Bar of Texas, 888 F.Supp. 1328 (E.D. Tex. 1995), afd 100 F.3d 953 (5th Cir. 1996)(lawyer who ran newspaper advertisement expressing opinion about method of judicial selection was not engaged in commercial speech even though his intent was to generate clients); Stern v. Bluestone , 12 N.Y. 3rd 873 (2009)(even though there is an incidental effect of increasing clients, look at content of communication to see if proposes commercial transaction; http://www.nyls.edu/user_files/1/3/4/30/84/85/114/135/12%20N.Y.3d%20873%20Stern%20v.%20Bluestone.pdf, accessed October 18, 2010). 

The main criteria is whether the communication is intended for sharing of information or whether it is promotional in nature.  Does the communication beckon business?  If so, it is advertisement. 

Rule 7.2 et seq.

Rule 7.2 (b) If it’s an advertisement, a copy must be filed with the Commission on Lawyer Conduct. 

According to ABA recording linked below, courts do not distinguish between “blog” portion of web site and “home page” portion of web site. 

SOLICITATION

Warning area: Directory sites, blogging, tweeting. 

Issue:  Any real time communication with people who are not clients should be considered carefully with the question in mind, “is this communication an attempt to solicit clients, motivated by pecuniary gain?”  Secondary issue:  has the prospective client invited the communication?

Rule 7.3, Communication with prospective clients

Rule 7.3(c) requires every written or recorded communication soliciting employment be filed with the Commission on Lawyer Conduct and certain information to be kept on file for two years

Imagine a person posts a tweet: “Just got released from Richland County jail, need atty fast.” Would it violate Rule 7.3 for an attorney to respond to that tweet? What if it mentioned being released from jail but did not solicit a response?

STATING A SPECIALIZATION

Warning area:  LinkedIn has a box for “specialty”

Issue:  Limits on ways lawyers may describe their areas of practice and expertise

Rule 7.4 regulates communication of fields of practice and specialization

Do not allow yourself to become inadvertently designated as a specialist on LinkedIn: Unless you are certified as a specialist by a state bar accredited authority in your jurisdiction, you should leave blank the LinkedIn profile field for “specialties”. Additionally, the “Answers” section in LinkedIn toolbar designates you as an “expert” after you’ve answered a certain number of questions and gotten positive responses. Therefore, avoid responding to questions in the official “Answers” section of LinkedIn. On the other hand, you can demonstrate knowledge and build relationships by answering questions in LinkedIn discussion groups, since there is no “best answer” or “Expert” designation in that area.

TESTIMONIALS

Warning area:  Directory sites, Endorsements, Ratings, Martindale Hubbell, Avvo

Issues: information that is non-verifiable, misleading, or stated without personal knowledge

Rule 7.1(c) (prohibits comparisons to other lawyers’ services, unless substantiated by verifiable objective data

Rule 7.1 (d) prohibits testimonials

Rule 7.2(c) prohibits giving anything of value in exchange for a recommendation

Rule 7.2(c) prohibits giving anything of value in exchange for a recommendation

S.C. Bar Ethics Opinion 09-10 (peer endorsements must meet all general ethics requirements related to solicitation and testimonials, http://www.scbar.org/member_resoucrces/ethics_advisory_opinions/&id=678 )

An attorney should prescreen recommendations on Linked-In before they get posted for public view.  Do not make reciprocal recommendations. Do not give anything of value to a non-lawyer for the soliciting prospective clients

FALSE OR MISLEADING INFORMATION

Warning areas: Directory sites, archiving sites, hiring ghost bloggers, gaining access to information through pretexting

Issues:  Anything that involves creating an appearance that we are something other than who we really are

Rule 7.1

Philadelphia Bar Assoc Advisory Opinion 2009-02 (ruled it was unethical for an attorney to use a third party to “friend” an adverse witness on Facebook in order to gain access to impeaching evidence, http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion_2009-2.pdf).

Hiring a ghost blogger to fill your web site might arguably mislead clients into thinking that you are more knowledgeable than you really are

CLIENT CONFIDENTIALITY

Warning area:  Shared drafting and collaboration platforms such as Google Wave, Blogging, twitter, JD Supra, Foursquare, Facebook, Photos, and other geo-tagged communications.  It’s not just in the elevator anymore!  Anyone, anywhere could be eavesdropping on your electronic communications, and even your locale could give away important confidential information (e.g. alert client’s competitor to M&A activity if you sign into Yelp and rate a restaurant in city of acquisitions target).

Issues:  Disclosure of client information or failure to adequately protect; potential disclosure to third parties through copies or email forwarding

Rule 1.6

Rule 8.3

INADVERTENTLY CREATING ATTORNEY CLIENT RELATIONSHIP

Warning area:  Directory sites, blog comments sections, advice sites

Issue:  Attorney gives advice in an online forum.  Take care to phrase discussions in terms of offering general legal information rather than legal advice. 

Rule 1.4

Rule 1.16

Rule Rule 4.4

CONFLICTS OF INTEREST

Warning area:  emails or advice given over internet between people who have peripheral or scant relationship

UNAUTHORIZED PRACTICE OF LAW

Warning area:  Legal advice sites, blogging, web page, Facebook, twitter

Issue:  Geographic boundaries are non-existent online.  Take care not to establish attorney client relationship or give legal advice in distant jurisdictions. 

Individual state laws define what is the practice of law.  Have you read them all? 

FOR-FEE REFERRALS

Warning area:  Directory sites

Rule 7.2

and see also

Rule 1.7

Rule 1.8

Rule 5.4

EX PARTE  COMMUNICATIONS / EAR WHIGGING

Warning area:  Facebook, Linked-In, and other community sites where lawyers can “friend” judges

Issue:  Communication with a judge outside the scope of a case.  The informality and increased access of social media make it easier to engage in ex parte communication.  Think before you talk. 

Rule 3.5(b)prohibits ex parte communication

IMPROPER CONTACT WITH PARTIES

Warning area: Facebook, Twitter

Issue:  Lawyer “friends” a defendant or communicates with a witness

Rule 3.5 (b)

Rule 3.5 (c)

DUTY TO PRESERVE EVIDENCE

Warning areas:  Facebook

Duty to preserve evidence and avoid spoliation likely applies to communications via social media whenever litigation seems likely

Rule

SECONDARY SOURCES:

ABA Division for Media Relations and Communication Service, “Beyond the Ethics of Web 2.0 – What’s Now, What’s Next, What If” (audio) http://www.abanow.org/2010/04/beyond-the-ethics-of-web-2-0-whats-now-whats-next-what-if/?audio (accessed October 18, 2010)

Bottom Line Law Group, “Ethics Tips for Lawyers Using Social Media” (accessed October 18, 2010)

Bruce, Deborah, “12 Social Media Ethics Issues For Lawyers,” http://solopracticeuniversity.com/2010/03/11/a-dozen-social-media-ethics-issues-for-lawyers/ (accessed October 18, 2010).

Burgus, Laura, “Top 5 Social Media Ethics Concerns for Lawyers” http://lawyerist.com/social-media-ethics-lawyers-top-5/ (accessed October 18, 2010)

Elefant, Carolyn, and Nicole Black. Social Media for Lawyers: the next Frontier. [Chicago, Ill.]: ABA Law Practice Management Section, 2010. Print.

Wall Street Journal Digital Network, “Q&A: Lawyers, Ethics and Social Networking”  http://blogs.wsj.com/digits/2010/03/19/qa-lawyers-ethics-and-social-networking/tab/article/ (accessed October 18, 2010)

 

Friday, March 25, 2011

睡莲 (Water Lily)

This is a rendition of the Chinese song Water Lily, or 睡莲 .   The water lily is a symbol of transformation, growing from the muck of the pond into enlightenment.  The primary stringed instrument in this is the Er Hu. 

Thursday, February 24, 2011

Jack Conte Mashup

 

Of course the 50 year old in me says, “I feel sorry for his neighbors” as well as “What’s going on outside his house, is life passing him by?” LOL ;-)

Wednesday, February 9, 2011

The Rev. Dr. Martin Luther King Speaks to Egyptian Protesters

Do You Know Who You Are?

The story is told that Billy Graham was visiting in the lobby of a nursing home.

After speaking with one lady he asked her, "Do you know who I am?"

She replied, "No, but there's a nurse at the end of the hall who can tell you who you are."

:-)    Thank you God for keeping us humble

Monday, February 7, 2011

Egypt: Tariq Ramadan & Slavoj Zizek - Riz Khan - Al Jazeera English

This is a terrific video pertaining directly to nonviolent direct action, freedom, democracy, universalism, and the current events in Egypt. Please share it!



The link is: Egypt: Tariq Ramadan & Slavoj Zizek - Riz Khan - Al Jazeera English

Saturday, January 29, 2011

The Commandment to Forgive

My command is this: Love each other as I have loved you.”John 15:12
If you are facing conflict in your personal life, your professional life, or in your church congregation, you are not alone!  There is division and dissension among Christians and in churches across the United States.   The key issue in every dispute is not whether conflict will happen, but how we will respond to it when it does happen.


Good_Samaritan_(Watts)
Watts, The Good Samaritan, courtesy Wikimedia commons

Will we respond in love?

And, what does it mean, this commandment to  “love” one another?

pieta

As to what it means to “love one another,” consider first, Christ’s love for us.

Though a love that lays down its life for others is counterintuitive to human nature,  that expression of God’s love for us is the first model for how we are to love one another.

Following from that expression, we then observe how we are to treat others.   The Lamb of God has loved each of us sacrificially, paving the way for reconciliation between God and man.  We, in our personal relationships, are commanded to do likewise.

In Matthew 5:23-24, we are admonished not to approach the altar of God until we have become reconciled to our fellow humans:
But I tell you that anyone who is angry with a brother or sister will be subject to judgment. Again, anyone who says to a brother or sister, ‘Raca,’ is answerable to the court. And anyone who says, ‘You fool!’ will be in danger of the fire of hell.  Therefore, if you are offering your gift at the altar and there remember that your brother or sister has something against you, leave your gift there in front of the altar. First go and be reconciled to them; then come and offer your gift.
And Jesus taught us to pray: "Forgive us our debts, as we forgive our debtors."

These are not empty words, “as we forgive our debtors.”    Our extension of forgiveness – of compassion--  to others is a condition to being forgiven.   This fundamental attitude toward our fellow human – an attitude of love -- does not allow for ostracization, for "other" ness, for building walls and fences.

When we fail to forgive, we risk being like the unforgiving servant in Matthew 18:21 - 35.  This servant, after being forgiven a large debt, displayed a lack of compassion toward another who was indebted to him for a lesser amount.  In this parable, when the Master found out about the lack of compassion shown by the servant who had been forgiven so much, he had him thrown into prison and tortured until he repaid back every bit of his original debt.

Truly, the consequences that flow from our own hardness of heart toward those with whom we differ are the consequences we really need to fear.   For, how can we approach the throne of God to ask for forgiveness for our sin, when we fail to extend even a smaller measure of grace to those who have sinned against us?

This was cross posted from the web site Just Mediation, LLC, a resource for “helping people tackle problems without tackling each other.” 

Thursday, January 27, 2011

Deliver Us From Evil?

The phrase, “deliver us from evil” may, perhaps, conjure up images of an active God plucking a passive self from circumstances of evil.  Is it possible, however, that this “delivery” might at times require our active involvement to deliver ourselves from the evil?  

This question brings to mind the famous quote, “God helps those who helps themselves.”  This quote, however,  is  not a Biblical quote at all.   Though it appeared in Benjamin Franklin’s text Poor Richard’s Almanac in 1757,  it has been traced further back than that, to Algernon Sydney, writing in 1698.   In contrast to this, Jesus in Matthew 5:39-40 seems to imply that we should not resist evil, when he says, “But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also. And if anyone wants to sue you and take your shirt, hand over your coat as well.”

Is there any way, then, for  a Christian to take an active stand against evil?  If so, by what means? 

The way of nonviolence can give an answer.  In his book, Stride Toward Freedom: The Montgomery Story, the Rev. Dr. Martin Luther King charts a courageous, middle course that requires our active engagement, as follows: 

"First, it must be emphasized that nonviolent resistance is not a method for cowards; it does resist.  . . . [W]hile the nonviolent resister is passive in the sense that he is not physically aggressive toward his opponent, his mind and emotions are always active, constantly seeking to persuade his opponent that he is wrong. The method is passive physically, but strongly active spiritually. It is not passive nonresistance to evil, it is active nonviolent resistance to evil [emphasis supplied].

 

MLK in study

(photo by Flip Schulke courtesy Time magazine)

Monday, January 17, 2011

Be An Extremist For Love

mlk-in-birmingham-jail

Today, as we celebrate in the USA the national day of remembrance of the Reverend Dr. Martin Luther King, Jr., I reflect upon his words, as penned in his Letter from the Birmingham Jail

But though I was initially disappointed at being categorized as an extremist, as I continued to think about the matter I gradually gained a measure of satisfaction from the label.

 

Was not Jesus an extremist for love: "Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you."

 

Was not Amos an extremist for justice: "Let justice roll down like waters and righteousness like an ever flowing stream."

 

Was not Paul an extremist for the Christian gospel: "I bear in my body the marks of the Lord Jesus."

 

Was not Martin Luther an extremist: "Here I stand; I cannot do otherwise, so help me God."

 

And John Bunyan: "I will stay in jail to the end of my days before I make a butchery of my conscience."

 

And Abraham Lincoln: "This nation cannot survive half slave and half free."

 

And Thomas Jefferson: "We hold these truths to be self evident, that all men are created equal . . ."

 

So the question is not whether we will be extremists, but what kind of extremists we will be. Will we be extremists for hate or for love? Will we be extremists for the preservation of injustice or for the extension of justice?

 

In that dramatic scene on Calvary's hill three men were crucified. We must never forget that all three were crucified for the same crime--the crime of extremism. Two were extremists for immorality, and thus fell below their environment.

 

The other, Jesus Christ, was an extremist for love, truth and goodness, and thereby rose above his environment. Perhaps the South, the nation and the world are in dire need of creative extremists.

How will you choose, today? 

Sunday, January 16, 2011

Representative Giffords’s Prophetic Words

"Sarah Palin ... has the crosshairs of a gun sight over our district and when people do that, they've gotta realize there are consequences to that action," Giffords told MSNBC in March.

The Kool Aid Pleadings

This week's exercise in blame throwing and blame shifting reminded me of "alternative pleading" taught in law school.*  The arguments I've heard this week go something like:

  1. I didn’t pour any Kool Aid.  (My speech did not advocate violence, even though I suggested we should make liberals afraid to come out of their houses.) http://vodpod.com/watch/3384590-gop-congressional-candidate-allen-west-tells-tea-partiers-make-the-fellow-scared-to-come-out-of-his-house
  2. If I did pour some Kool Aid, he didn’t drink it. (This guy was insane and violent speech had nothing to do with this.) video:  “lead the charge with bayonets” http://vodpod.com/watch/2569365-youtube-congressional-candidate-lieutenant-colonel-allen-west
  3. If he did drink some Kool Aid, you can't prove it was my Kool Aid that he drank.  (You can't prove that my hosting a target practice fundraiser had anything to do with this.)   http://www.wnd.com/?pageId=107417
  4. If he drank my Kool Aid, it was his fault (not mine) that he did.   (Guns don't kill people, people do. And by the way, if you argue this incident points to the need for gun control, I might exercise my Second Amendment Remedies.)  http://www.youtube.com/watch?v=bqAWQ-TMF3I&feature=related
  5. I may pour Kool Aid, but it's not my intent that anyone drink it.  (I just say these things, people are supposed to know I don't mean them.)  http://www.youtube.com/watch?v=SQPBtFJzhnU 
  6. If you accuse me of having anything to do with Kool Aid, you are making a personal attack on me, and I’m offended by that.  (I’m a victim of a left wing conspiracy, and I'm offended that you would insinuate that my hosting a target practice fund raiser and suggesting we "take aim" at Gifford would have any relation to this.) left wing conspiracy:  http://www.politico.com/news/stories/0309/19846.html
  7. Everyone pours and drinks Kool Aid, and that makes it okay to have a Kool Aid party.  (Everybody else uses violent language and gun metaphors, so why not me.)
  8. Kool Aid sells well, so that means it's healthy.  (Hey, this is good for my ratings, lets' go buy a Glock!)
  9. It's not Kool Aid, it's milk.  (They were surveyor marks!) http://www.theatlantic.com/politics/archive/2011/01/palin-aide-symbols-werent-rifle-sights-but-surveyors-marks/69163

The fallacy of all these assertions is that none of them can make an immoral action into a moral one.  Two wrongs do not make a right.  Political speech that advocates violence is immoral, period.  That, at least, seems like a no brainer we should all be able to agree on.  Beyond this, where is the line between freedom of expression and advocacy of violence?   Well, here's a radical suggestion:  why not err on the side of caution? 

___

*Alternative pleading allows factually inconsistent claims to be asserted in the same pleadings, the classic example being "(1) I did not borrow the cooking pot.  (2) If I borrowed the cooking pot, I returned it.  (3) It's not your cooking pot." 

Women Negotiating Power

Wow, Ladies, this book has eight five star reviews.  I just ordered it.   

Friday, January 14, 2011

Nonviolent Revolution in Tunisia

is unfolding at this moment. 

tunisia revolution BBC photo

This image is on the web site  http://news.bbc.co.uk/2/hi/africa/9361546.stm  

Widespread demonstrations and unrest shut down government and forced the resignation of Tunisian President, the dictator Zine al-Abidine Ben Ali.  

Prime Minister Mohamed Ghannouchi will assume power as Ali boards a plane for Europe. 

This is the 21st Century version of “Second Amendment Remedies”

Another successful nonviolent revolution. 

Wednesday, January 12, 2011

Interdisciplinary Collaborative Divorce: Is It Right For Me?

You may have heard of a new way of doing divorce, called "interdisciplinary collaborative divorce". This article describes what collaborative divorce is, how it works, why it is better for most divorcing couples, and the few cases in which it is not appropriate.

WHAT IT IS

Collaborative Divorce means divorce without adversarial litigation. This does not mean it is a divorce without argument and disagreement. You do not need to be wearing a halo to qualify. What you do need to do, ahead of time, is to agree not to go to court. That's right. You make a 100% commitment to stay at the bargaining table with your ex-spouse until everything is worked out.

How is this enforced? Through an agreement everyone signs ahead of time, stating that if either party goes to court, all professionals involved in the case will resign. This ensures that every professional in the case will be 100% devoted to helping you resolve your dispute without resort to litigation. No one will be bargaining with their fingers crossed behind their backs.

In a traditional divorce, the proceedings are viewed like a battle, with each party hiring a gladiator to go to war on their behalf. Collaborative Divorce is different. Neither party is seen as "evil" or as an "opponent" on a battlefield. The problem, rather, is to find ways to disentangle the couple's lives in ways that leave as little damage as possible and to enable them to continue to work together to parent (and grandparent) their children.

Removing adversarial litigation from the range of options keeps matters within the control of the divorcing couple, and it opens up more creative possibilities for addressing conflict. There is a saying that when the only tool you have is a hammer, the whole world looks like a nail. Litigation is like a hammer. It is but one tool out of many that can be used to resolve disputes. When the hammer is removed from the conflict resolution professional's toolbox, a wide variety of other tools are used to take its place. Drills and screwdrivers come out of the closet, jigsaws take the place of saber saws, and solutions are carefully custom tailored to fit the parties' needs more exactly than could be done with a hammer.

How? Through use of Interest Based Negotiation and through use of a network of neutral collaborative professionals who apply their expertise to help the divorcing couple.

HOW IT WORKS

In Collaborative Divorce, each party chooses his or her own attorney to represent and guide that party through the process. The first meeting between parties and each of their attorneys is called a "Four Way Meeting". At this meeting, the issues and needs are discussed. Then, the parties and their attorneys decide what other professionals -- all neutral, collaboratively trained professionals, as well -- will be utilized to assist in resolution of the case. Accountants, child specialists, divorce coaches, appraisers, vocational rehab experts, may all be used depending on the needs of the parties. In a litigated divorce, resources are first put into the "Discovery" process (Interrogatories, Requests to Admit, and Depositions) to obtain information. In collaborative divorce, the parties agree to full disclosure and then put their resources into obtaining the neutral, professional help they both need to secure a fair outcome.

Once the facts are all on the table, the parties are able to engage in interest-based negotiation to work out solutions that are fair and meet the true needs of both sides. The goal of interest based negotiation is to enable the true needs and interests of the parties to be met. Parties remain in complete control of their agreement and can tailor it to reflect both their unique situation and their individual values and priorities.

WHAT MAKES IT BETTER?

Put simply, Collaborative Divorce invests in the family rather than in conflict. Instead of pouring precious family resources into litigation which builds walls and fences, private decisions are kept private, and resources are poured into solutions that help the family, such as a financial plan, a parenting plan, career planning, and fair division of assets. Studies show that couples are generally happier with collaborative divorce, that collaborative divorce is significantly less expensive than litigated divorce, and that all but a small fraction of cases do settle through the collaborative process.

WHEN IS COLLABORATIVE DIVORCE NOT APPROPRIATE?

Collaborative Divorce requires a commitment to fairness and full disclosure. If either party is not so committed, the force of the law may be needed. Any questions or concerns should be discussed more fully with your collaboratively trained attorney before making the decision to engage in a Collaborative Divorce.

HOW CAN I LEARN MORE?

Learn more about collaborative divorce, and locate collaboratively certified professionals, through the web site of the International Academy of Collaborative Professionals.   The author of this blog is a collaborative professional who represents parties in collaborative divorce.  For more information, you may also refer to her professional web site, Just Mediation, LLC