Author: JGL Law

AS MANY AMERICANS HEAD BACK TO THE WORKPLACE, EEOC UPDATES ITS PANDEMIC EEO GUIDANCE:

WHAT CAN EMPLOYERS DO & WHAT CAN EMPLOYEES DEMAND?

On June 11, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its guidance on COVID-19-related employment issues. In its published document, “What You Should Know About COVID-19 and the ADA^[1], the Rehabilitation Act, and Other EEO Laws,” available on its website, the EEOC tackles various FAQs related to both employer and employee rights during the pandemic.

Previous guidance issued in March and April from the EEOC addressed various issues related to keeping workplaces COVID-19 free, including that an ADA-covered employer MAY:

·         Screen job applicants and employees for COVID-19 symptoms;

·         Take body temperatures of job applicants and employees during the pandemic;

·         Require an employee to stay home if they have COVID-19 symptoms;

·         Require a doctor’s certification of fitness before allowing employees to return to work; and

·         Administer COVID-19 tests to its employees.

While employers may take these steps, employees have the right to keep answers to screening questions and results of COVID-19 tests housed separately from their personnel files and confidentiality is to be maintained (though a positive test can be disclosed to public health agencies).

The EEOC guidance notes that while federal EEO laws protecting workers’ rights, like the ADA and Rehabilitation Act, continue to apply with equal force during the pandemic, “they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities.”

Since the EEO laws remain in full force and effect, if an employee has a “disability” under the law, he or she is entitled to the same reasonable accommodations as were available pre-pandemic, and may also be entitled to additional or altered accommodations during the pandemic absent “undue hardship” to the employer. There is no carve-out for essential workers. The laws entitling disabled workers to reasonable accommodations include those who the CDC has termed “classified as critical infrastructure” or “essential crucial workers.”

Employers may still not discriminate based on disability, pregnancy or age. New guidance issued on June 11th makes it clear that covered employers may NOT exclude employees solely because they have a pre-existing condition and are in a group identified by the CDC as at “higher risk for severe illness” if COVID-19 is contracted. This includes pregnancy and age. Therefore, unless an employee requests a reasonable accommodation under the law for a recognized “disability,” the ADA does not allow the employer to unilaterally exclude an employee even if it is concerned that returning the employee to work may jeopardize his or her health. Likewise, older workers cannot be excluded from work just because the CDC has classified individuals age 65 and over at a “higher risk” for severe complications with COVID-19. Employer motivation is irrelevant. The guidance instructs, “the ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.”

 The EEOC continually updates its guidance, and both employers and employees should keep apprised of all new guidance as it comes out. As more employees prepare to return to the workplace this month, it is critical for both employers and employees to understand how federal, state, and local laws intersect and impact employment at this time.

Ms. Nannis is a principal in JGL’s Qui Tam and Civil Litigation practice groups. She primarily represents whistleblowers who report fraud on the government in False Claims Act (qui tam) litigation. While she has experience in numerous types of complex, civil litigation, she focuses on healthcare, kickback cases and class actions across the country. She can be reached at vnannis@jgllaw.com

_^[1] Americans with Disabilities Act of 1990, 42 U.S.C. § 12101.

Rejected as improper an interlocutory appeal on immunity grounds advanced by WSSC. Washington Suburban Sanitary Commission v. Bowen (Md. 2009)

COVID Court closures are expected to create a significant backlog of family cases and delays getting to trial and resolution.  This is especially difficult for families whose complex situation calls for Court intervention, but access to the Court has been quite limited.  What options do these families have while they await rescheduled hearing and trial dates & their day in Court?

This series of articles explores options to help stabilize families in crisis through:

·         Parent Coordination

·         Early Neutral Case Evaluation

·         Arbitration

What is an Early Neutral Case Evaluation?

While the exact process can vary, it usually involves a blending of an Early Neutral Evaluation and a Settlement Conference.  The goal is settlement, and if settlement cannot be achieved, receiving input about the strengths and weaknesses of their positions, likely outcome of litigation and its cost/benefit, and potential services to assist the family as their case progresses.

The process involves:

(1) the parties, their attorneys, or both appear before an impartial evaluator and present in summary fashion the evidence and arguments to support their respective positions

(2) the evaluator renders an evaluation of their positions and an opinion as to the likely outcome of the litigation; and, may include:

(3) settlement efforts to discuss the issues and positions of the parties in an attempt to agree on a resolution of all or part of the dispute by means other than trial.

What Does an Early Neutral Case Evaluation Look Like?

Generally, Early Neutral Case Evaluation consists of:

·         Intake by the neutral evaluator(s), to confirm no prior contact with the family

·         Scheduling the evaluation

·         At the evaluation:

·         Each parent or spouse (and their attorneys, if represented and participating) presenting their evidence & arguments

·         Deliberation by the neutral evaluator(s) and conveying their evaluation and opinion of likely outcome

·         Remaining time dedicated to settlement discussions, facilitated by the neutrals.

How Can Early Neutral Case Evaluation Help During Court Backlog?

Early Neutral Case Evaluation is a voluntary process parties can pursue at any time.  It does not depend upon the Court’s calendar.  Potential outcomes are:

·         Settlement of some or all the issues presented;

·         No settlement, in which case the parties and their attorneys proceed to other processes to resolve their matter, but with information about services and potential outcomes that may assist them going forward;

·         In certain cases requiring additional services from outside professionals/providers before the neutral evaluation portion can be completed, a recommended process and opportunity to resume Early Neutral Case Evaluation once additional services have been provided.

Early Neutral Case Evaluation is confidential, so no part of it can be disclosed or used in future litigation and no evaluator can be called as a witness.  So, it is a confidential place for assessment and potential resolution of a family’s legal matter.

Participants could consent to being required to follow the evaluators’ recommendations on a temporary basis until the parents can have a trial in Court.  This could apply to a temporary schedule, a specific legal decision on medical, education, or religion, or pressing concerns that a Court does not consider an emergency.

While only a court can make a final, binding decision, authorizing limited and temporary decision-making to a neutral evaluator is an opportunity to create stability in and a forward-moving process for a chaotic, complex family situation until the family has its day in Court.

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation.  Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.

COVID Court closures are expected to create a significant backlog of family cases and delays getting to trial and resolution.  This is especially difficult for families whose complex situation calls for Court intervention, but access to the Court has been quite limited.  What options do these families have while they await rescheduled hearing and trial dates & their day in Court?

This series of articles explores options to help stabilize families in crisis through:

·         Parent Coordination

·         Early Neutral Case Evaluation

·         Arbitration

What is Parent Coordination?

Parent Coordination a process in which the parents work with a Parent Coordinator to reduce the effects or potential effects of conflict on the parents’ child.  A Parent Coordinator is a neutral, in that she does not represent, advocate for, or advise either parent.

Parent Coordination’s goals include:

·         developing an agreed plan for custody and visitation if there is no agreement or court order

·         resolving disputes about the interpretation of and compliance with the order and in making any joint recommendations to the court for any changes to the order

·         educating about making and implementing decisions that are in the best interest of the child

·         developing guidelines for appropriate communication between the parents

·         suggesting helpful resources for the family

·         modifying patterns of behavior and develop parenting strategies to manage and reduce opportunities for conflict in order to reduce the impact of any conflict upon their child

·         deciding post-judgment disputes by making minor, temporary modifications to child access provisions ordered by the court if:

o   the judgment or post-judgment order of the court authorizes such decision making, and

o   the parents have agreed in writing or on the record that the post-judgment parenting coordinator may do so.

What Do Parent Coordination Meetings Look Like?

The Parent Coordination sessions include the Parent Coordination and parents.  Not their attorneys.

The meetings may include all three participants together or involve one-on-one caucuses/breakouts with the Parent Coordinator and a single parent.

How Can Parent Coordination Help During Court Backlog?

If parents consent in writing, they can authorize the Parent Coordinator to make certain parenting decisions for the parents on a temporary basis until the parents can have a trial in Court.  This could apply to a temporary schedule, a specific legal decision on medical, education, or religion, or pressing concerns that a Court does not consider an emergency.

Also, a Parent Coordinator can recommend services to the parents and for the family.  Services might include an assessment or evaluation of substance use, emotional and mental health, educational difficulties, and so on.  Parents can consent to submit certain issues to the Parent Coordinator for recommendations, agree to be bound by them, or if not bound agree that the recommendations be admissible in Court.  These recommendations can help move a family matter forward in developing important information and understanding about the parents and family, until a Court can intervene.

If necessary, a Parent Coordinator can testify in court as a fact witness and produce documents, in response to a subpoena.  A Parent Coordinator cannot serve as an expert witness.  However, a Parent Coordinator can testify about recommendations made and whether parents complied.

A Parent Coordinator cannot make a final, binding decision, because only the Court has that authority in child custody matters.  However, with limited decision-making power provided to a willing Parent Coordinator, this is an opportunity to create stability in and a forward-moving process in a chaotic, complex family situation until the family has its day in Court.

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation.  Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.

     With families of divorce, summer is often a time that kids spend significant amounts of time with non-primary custodial parents. Even in an ordinary summer, extended visits with that parent are often accompanied with anxiety and trepidation. Parents worry: Will her father make sure she does her summer school work?  His mother won’t give him his medications. He does not worry about Sarah’s allergies.  Where will they be staying?  I need to know!  The kids have their own concerns: Will I get to see my friends? I don’t like it there. Why do I have to go?   These are but a few of the many concerns those families lawyers like myself hear at the launch of summer vacation, year in and year out.

     This year – 2020 – brings no ordinary summer.  All across the country, academic years were suspended, and then cut short.  Families from California to Florida were forced into some sort of “stay at home” order. Courts are closed throughout the nation.  The statistics regarding cases and deaths related to COVID-19 increase every day, even now, months into this pandemic. It is not surprising that divorced parents have disagreements and that many of those disagreements center around their children. As such, levels of anxiety have inherently increased as the summer of 2020 approaches.

     In many jurisdictions, courts have issued overall edicts that parties are to comply with existing orders regarding visitation, regardless of the COVID-19 outbreak. Like most “general orders”, those edicts are simply inappropriate and often just plain unfair for many children and their families.  Any number of potential situations comes to mind.  What happens where a child has been sick or even exposed to the virus?  Should she have to go to her mother’s house despite an existing order that provides mother with four weeks of summer visitation?   Dad lives in California and his son is supposed to be put on an airplane to fly there from his home in Maryland?  Should the child be put at risk by travelling through an airport and on the plane from one coast to the other just so Dad can exercise his visitation? 

     I am reminded of a great quote that I heard some time ago from Jodi Picoult, a best selling fiction author: “The answer is that there is no good answer. So as parents, as doctors, as judges and as a society we fumble through and make decisions that allow us to sleep at night because morals are more important than ethics and love is more important than law.”    

    That may or may not be helpful.  What I can say to parents is that the best thing you can do, when trying to balance health and safety with court orders and obligations is to find a family lawyer whose judgment you trust, give them a call and discuss your situation and get some advice.    Do your best.  No one gave any of us lessons in how to handle the myriad of issues that have been presented to us when considering COVID-19 and its impact on summer visitation.

David Bulitt is a shareholder in the law firm of Joseph, Greenwald & Laake, PA, in suburban Maryland. A father of four, he focuses on all areas of family law. A published author, Bulitt’s most recent book, THE FIVE CORE CONVERSATIONS FOR COUPLES was published in February, 2020 and is co-authored with his wife, a family therapist.

A mother battling serious addiction issues used the services of a skilled family lawyer and found a gradual path back into her children’s lives by negotiating a modified possession order requiring her to engage in addiction therapy, submit to drug testing, and wear a remote alcohol monitoring device as conditions for her progressive visitation and custody schedule.

If you have time on your hands, seize the opportunity to catch up on those “to do’s” needing wrap up after your child support or alimony case.  Check out these tips to see if any apply to your support order or agreement.

Tip 1:     Timing

Confirm & calendar:

·         Due dates for payments.

·         Termination events & dates of final payments.

·         When paying child support for multiple children in the same court order, a date to look into whether to file to modify child support when older children reach the age of majority and age out (because child support does not automatically reduce).

·         A date by which to file to terminate support due to terminating events, if being paid through an earnings withholding order, because withholding does not necessarily automatically stop.

Tip 2:     Termination

While repetitive, the only ones tracking support termination events are you and the other parent or your ex-spouse.  Know which events terminate support and when.  Understand what is required of you and the other parent or your ex-spouse to terminate.  Then track, calendar, and follow up. 

Why?  Would you rather support terminate when planned?  Or, chase reimbursement of overpayments (which may or may not be reimbursable)?

Tip 3:     Changes in Circumstance

No child support order is written in stone.  Changes may occur to parents’ income or children’s expenses.  If material, these could justify a modification or change in child support.  Per current law, a court can only modify child support dating back to the date of filing with the court.  Delay can be costly.

Also, alimony may be modifiable.  Either due to material financial changes or only due to certain circumstances stated in your agreement.  Be sure to understand if alimony is modifiable in your case and when/why.  Know what is required of you if modifying circumstances occur, to avoid unintended financial consequences.

Please see Tip 9 about Future Disputes below, which may come into play.

Tip 4:     Children’s Expenses

Sometimes certain expenses are paid outside of child support, usually varying or foreseeably terminating expenses.  If so:

·         Review your order or agreement. 

·         Understand the reconciliation & reimbursement process, documents required, and timing.

·         Calendar dates. 

Then follow it if you don’t want to risk potential forfeiture of the right to reimbursement.

If monthly child support includes varying or foreseeably terminating expenses:

·         Identify the expenses & amounts.

·         Review these at least yearly for changes.

·         If changes occur, consult with a professional for cost/benefit of a modification of child support.

Tip 5:  Life Insurance

Does your agreement require life insurance for the benefit of children or an ex-spouse?  If so, identify requirements, deadlines, calendar & follow up.  If forgotten, the financial consequences & future headaches can be significant.

If life insurance is not required and you haven’t already, update your life insurance beneficiaries.

Tip 6:     Exchanging Documents

If your agreement or order requires exchange of documents, to ensure follow through:  Identify which documents, when & calendar due dates.

Tip 7:     Recalculation

If your agreement requires automatic recalculation of support:

·         Seek professional advice about what is expected of you, what the process involves & how to formalize any recalculation.

·         Identify tasks & calendar. 

·         Identify professionals to assist with the recalculation (such as mediator, attorney, or accountant), because this often cannot be done without their help.

Tip 8:     Taxes

Consult with an accountant or tax preparer about what your court order or agreement requires tax-wise and any withholding adjustments that may be appropriate because of changes in your filing status.  This may involve claiming children, required IRS documents, and questions about deductibility.

Tip 9:     Future Disputes

Is there a process for resolving future disagreements or disputes in your order or agreement?  Take a look.  Look for things like notice (especially written notice of breach) & mediation.  During conflict it can be difficult to remember that there may be a required resolution process.  Plus, it may be required before filing in court.

Conclusion

In the immediate relief that often follows the end of negotiation, mediation, or litigation, it’s tempting to put your documents in a drawer and move on.  Moving on also means wrapping up.

If questions about what follow up is needed, consult with an appropriate professional, whether an attorney or accountant.

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation.  Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.

You may find yourself with time on your hands while staying at home.  This is an opportunity to catch up on the “to do’s” that still need tending after your child custody and parenting case has finished.

The relief of the end of a case usually leads to a new normal, followed by forgetting those items that still need tending.  Now may be a good time to wrap up that outstanding to do list.

Tip 1:     Make a Calendar

Review the parenting time schedule in your agreement or court order.  Put the day-to-day, holiday, school break, and summer schedules on a calendar.  Include deadlines for designating/choosing summer vacations.  Then send it to the other parent.

This helps you identify & get ahead of any disconnects.  Before becoming last minute crises.  In addition, this helps you track & keep deadlines for choosing summer vacation time.  Therefore, you are on time & avoid conflict over missed deadlines. 

Finally, and perhaps most importantly, some children find a calendar helpful to adjust to and follow a parenting time schedule.  Once you and your co-parent are on the same page, consider creating a kid-friendly calendar for your children.  

Tip 2:     Keeping In Touch With Your Kids

Some parenting orders and agreements are very details about parent-child communications when your children are with their other parent.  Some are not, leaving the “how” and “when” to parents to work out.  Read your order or agreement.  What does it say? 

If nothing at all, or something but not how and when, try to work it out with your co-parent.  If there is a stated schedule, then start building a routine with your children around it.  Expectations matter – especially unmet expectations.  Knowing & following through help avoid conflict and disappointment.

Tip 3:     Supportive Services

Does your agreement or court order require follow up or supportive services?  For example, therapy, testing, evaluations, or parenting coordination?  If so, are there deadlines?

In the relief of the case being “over”, it is easy to forget about the services meant to support your family’s successful transition to your new parenting agreement or order.  Parents and children can only benefit from these services by following through.  Without parent follow up, services do not happen.

Tip 4:     Future Disputes

Is there a process for resolving future disagreements or disputes in your order or agreement?  Take a look.  Look for things like notice (especially written notice of breach), mediation, parent coordination, or consultation with another professional.

During conflict, it can be difficult to remember that there may be a required resolution process.  Moreover, that might actually help you and your co-parent work out the issue.  In addition, that may be required before either of you can file in court.

Tip 5:     Legal Custody & Decision Making

What does your agreement or court order define as decisions requiring involvement of both parents?  What kind of involvement?  Consultation?  Information sharing?  Participation?  Discussion?  Making decisions?

Beware of making decisions on your own, only to find out that the other parent too had a say but had not been given a chance.  This runs the risk of the other parent putting the brakes on a decision.  Or, unreimbursed expenses from that decision. 

In addition, you may find that when there is impasse you are required to participate in a dispute resolution process (see Tip 4).

Tip 6:     Notification

Review your court order or agreement for what events require advance notice to the other parent. What kind of notice?  When?  For what?

You may find that advance notice is needed about a move or change in residence, changes (to the schedule, in the children’s schools or medical providers), disputes with the other parent before filing in court, selecting summer vacation dates, rights of first refusal, and so forth. 

Tip 7:     Material Changes in Circumstance

No parenting agreement or custody order is written in stone, never to change.  Material changes may occur after your court order or agreement making the existing parenting time schedule or legal custody decision making no longer possible, practical, or in your child(ren)’s best interests.  Changes happen.  If material, these could justify a modification of or changes to your parenting agreement or court order.  (In that event, see Tip 4 about Future Disputes.)

Conclusion

In the immediate relief that often follows the end of negotiation, mediation, or litigation, it’s tempting to move on without looking back.  Moving on also means wrapping up.  Tending to this now will save you potential parenting headaches in future.

If questions about what follow up is needed, consult with an appropriate professional, whether an attorney, therapist, or other advisor…

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation.  Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.

 

 

Washington DC – The 2020 edition of DC, Super Lawyers magazine recently named 14 Joseph Greenwald & Laake, P.A. attorneys to its annual Maryland, Super Lawyers lists.

Among which Patrick W. Dragga was listed as one of the lawyers who ranked top in the 2020 Washington DC Super Lawyers (Top 100). 

The Washington DC, attorneys who made this year’s Super Lawyers list, including their primary practice areas as identified by Super Lawyers, are:

GREENBELT, MD –

• Andrew E. Greenwald –  Medical Malpractice: Plaintiff

• Burt M. Kahn – Medical Malpractice: Plaintiff

• Jay P. Holland – Labor & Employment

• Steven M. Pavsner – Medical Malpractice: Plaintiff

• Timothy F. Maloney – Gen Litigation

ROCKVILLE, MD – 

• David M. Bulitt – Family Law

• Jeffrey N. Greenblatt – Family Law

• Jeffrey Hannon – Family Law 

• Patrick W. Dragga – Family Law 

• P. Lindsay Parvis – Family Law 

• Anne E. Grover – Family Law

RISING STAR  – 

• Alyse Prawde – Civil Litigation: Plaintiff 

• Rama Taib-Lopez – Family Law

• Christopher R. Castellano – Family Law

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.

About Joseph Greenwald & Laake

For more than 40 years, Joseph Greenwald & Laake has worked with individuals and businesses in Maryland and the District of Columbia, taking on the most complex of legal issues with sophisticated counsel and a personal touch. JGL serves clients in virtually all areas of the law.

If you find yourself with time on your hands, now is an opportunity to catch up on those after divorce “to do’s”.

Often, clients are so relieved the divorce is over, they put their divorce documents in a drawer, understandably wanting to move on.  However, there are often deadlines, timelines, and follow up needed after the divorce.  Now may be a good time to tend to those items that need wrapping up.

Tip 1:     Retirement Transfer Orders

If retirement assets are to be transferred between you and your ex-spouse, have the necessary retirement orders been prepared?  Filed with the court?  Copies submitted to the retirement Plan?  Accepted by the Plan?

Most transfers of retirement benefits between ex-spouses require a court order to carry out the transfer.  Because retirement benefits are often one of the largest assets transferred in a divorce, it’s important to make sure this is done.  If any questions, this really is best discussed with an attorney.

Tip 2:     Death Benefits for Life Insurance & Retirement Assets

If an ex-spouse is not entitled to benefits from life insurance or retirement assets when you pass away, have you updated your life insurance and retirement beneficiary designations?

Even if a marital settlement agreement waives your ex-spouse’s right to these benefits upon your death, the life insurance company and retirement plan are not parties to your agreement.  Avoid the unintended consequence of having death benefits paid to an ex-spouse who is not entitled to them.  Update your beneficiary designations.  Be sure life insurance beneficiaries are consistent with what your agreement requires.

Tip 3:     Update Your Estate Planning Documents

If you haven’t, there’s no time like the end of a divorce to prepare an estate plan or update your existing (and now outdated) estate planning documents (Last Will & Testament, Power of Attorney, Healthcare Directive/Living Will).  While you may have run out of steam, your records are as organized and updated as they are likely going to be for years to come.  Take advantage of this, push through, and get these important documents done.

Tip 4:     Review Your Settlement Agreement or Divorce Decree/Judgment of Absolute Divorce

While tempting never to look at these again, they often contain deadlines, timelines, and items needing follow up that can easily fall through the cracks.  When reviewing, note items that require one-time wrap up versus those that require attention repeatedly (such as annually).  Some common ones:

·         Name Change:  If in the Judgment of Absolute Divorce you resumed use of a former name, have you updated this with Social Security, MVA?  Employment, life insurance, health insurance, bank, investment, and loan accounts?

·         Home Ownership &  Use & Possession:  This frequently involves a number of deadlines.  Review.  Make sure you understand what needs to happen when.  Schedule deadlines & reminders on your calendar.

·         Car Title:  Is title to be transferred?  Have the appropriate forms been signed & submitted to MVA?  If there is a loan against the car, title transfer cannot occur until the loan is paid off or refinanced to remove the non-owner ex-spouse.  In that case, task/calendar the payoff date and chase up the title transfer then.

·         Exchanging Documents:  Sometimes, ex-spouses are required to exchange documents periodically.  This may be required to show compliance with maintaining life insurance for a child’s or ex-spouse’s benefit or to exchange income information for spousal or child support purposes.  Identify whether documents are to be exchanged, what documents, and how often.  Then follow up.

·         Bank & Financial Accounts:  Have joint accounts been closed or retitled?

·         Debts:  Have joint accounts been closed or former authorized users removed?  Pull your credit report to see what it shows.

·         Utility Ownership:  Identify any services provided through or jointly with your ex-spouse and arrange to separate, transfer, or change the account ownership.

·         Taxes:  Schedule an appointment with an accountant to review your agreement or divorce decree (if you haven’t already) for advice about what follow up is needed tax-wise.

Conclusion

In the immediate relief that often follows a divorce, it’s tempting to move on without looking back.  Moving on also means wrapping up.  Tending to this now will save you potential headaches in future.

If questions about what follow up is needed, consult with an appropriate professional, whether an attorney, accountant, realtor, mortgage broker, investment advisor…

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation.  Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.

Welcome to the latest article in a series about mediation.  Here are earlier articles about:

·         Online Mediation Technology Tips

·         An Overview of the Online Mediation Process

Before jumping into how to prepare for settlement discussions in mediation, let’s first address what mediation is:

What is Mediation?

Mediation is a process of meeting with a neutral person, called the mediator.  The mediator’s role is to provide a structure for settlement discussions. 

Participants include the mediator, the people who have a dispute, and potentially their attorneys.  Mediation may include other participants if mutually agreed in advance.

Mediation’s goal is a settlement accepted by all parties.

How can you set yourself up for success?  Preparation is key.

Tip 1:     Understand the Process Ahead of Time

Don’t walk into mediation without a basic understanding of mediation and the process.

If you have one, ask your attorney.  If you don’t, check out these online tools about mediation & the process:

·         Maryland State Bar Association’s ADR In a Box Video Series

·         Mediation Confidentiality

·         Maryland Judiciary’s Mediation Video

Tip 2:  Gather Information to Help You Make Informed Decisions

Don’t walk into mediation uninformed.  Identify the issues to be resolved in mediation, then gather the information you need for informed discussions and decision-making about those issues.

If you don’t have the information you need, ask for it.  Gather the information you do have.

If you have an attorney, prepare with him or her in advance, discussing the information needed for a productive mediation.

If you don’t, you can use the Maryland Court forms below (which you may or may not have already prepared) to identify and gather information that is likely to be helpful in the mediation on the following topics:

·         Child Support:  Financial Statement (Child Support Guidelines for combined parent incomes less than $15,000/month)

·         Child Support and/or Alimony:  Financial Statement (Alimony & Child support for combined parent incomes of $15,000+/month)

·         Children: Parenting Time (Physical Custody) & Legal Decision-Making (Legal Custody)

o   Parenting Plan Instructions

o   Parenting Plan Tool

o   Joint Statement Concerning Decision-Making Authority & Parenting Time

·         Property:  Joint Statement Concerning Marital & Non-Marital Property

Tip 3:  Develop a Settlement Plan

Reviewing the forms above or based upon discussions with an attorney, develop settlement options & write them down.  It usually helps to start with three:

1.       Your ideal settlement outcome

2.       What a court will likely decide

3.       Your bottom line or what settlement you are willing to accept to avoid a contested trial/the court deciding for you

Settlement options are almost infinite, limited only by the parties’ creativity, willingness to compromise, and what is practical/possible.  However, the world of options becomes much smaller when a court decides the outcome because the Judge or Magistrate is limited by what the law allows them to do.

Please visit my blog for ideas on how to organize thoughts & develop settlement options regarding children and parenting:

·         Parenting Time & Physical Custody

·         Decision-Making & Legal Custody

·         Parenting Time Schedules

·         Summers

·         Holidays

·         Rights of First Refusal

Tip 4:  Consult Professionals & Resources

Ideally before, but also during, the mediation process, consult with any professionals & resources from whom you need necessary information in order to evaluate settlement options (both the ones you generated and those raised in mediation).  This might include:

·         Your mortgage provider, a mortgage broker, or lender about a refinance

·         An accountant about income tax return-related issues and tax consequences of certain asset transfers/division

·         A realtor or appraiser about the value of a home or other real estate

·         An appraiser of other difficult to value or disputed value items or assets, like a business, artwork/collection, pension, and the like

·         An attorney for the legality, practicality, and advantages and disadvantages to you of a particular proposal.  (You may find this article about how and when to involve an attorney in mediation helpful.)

Tip 5:  Prepare Yourself for Difficult Conversations

Mediation can be a very effective settlement tool.  Preparation puts you on the path for success.  But that doesn’t mean the path is easy. 

You may find the following resources for managing conflict, difficult conversations, and stress helpful:

·         Calming Your Brain During Conflict

·         Active Listening Exercise

·         Mindful Breathing for stress, anxiety & anger resilience

Conclusion

Mediation is a process.  It takes time.  With preparation, you can make the most of your time in mediation, paving the way for a successful settlement.

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation.  Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.

This article expands upon an earlier one discussing mediation, online mediation, and technology do’s and don’ts, which you can read here.

So, what should you expect during online mediation?

Video Conferencing Software

ODR or virtual mediation takes place using video conferencing software (such as Zoom, Microsoft Teams, etc.).  This means that participation occurs over video (or, over a telephone if video is unavailable) and participants can see and hear one another.

Tip:  Ask your mediator in advance what software he or she uses and watch a tutorial on YouTube or the software’s website.  Familiarizing yourself with the software in advance will alleviate some of the stress, so you can focus on the issues you are there to mediate.

Session Structure

The software used usually allows the mediator to create “rooms”, so video screens showing all or some of the participants.  When in a room, participants should be able to see and hear everyone else in the same room.  When in separate rooms, participants can only see and hear participants assigned to their room, not anyone in other rooms.  The mediator can move between rooms.

These rooms are generally used for different combinations of participants:

·         everyone in the same room; and/or

·         just one party (and their attorney, if participating) together with the mediator in the same room (called caucus or breakout), while the other party (and their attorney, if participating) wait together in a separate room; and/or

·         just the attorneys and the mediator in the same room, while the parties wait in their own separate rooms.

The different room configurations allow a mediator to communicate with everyone together or with each party (and party’s attorney, if attending) separately.  Sometimes separate rooms (or caucuses) are needed to help move settlement discussions along because they are opportunities to say things that you may not want to say to the other participant and to break out when communication in joint session becomes unproductive.

Tip:  A mediator may caucus with one party for more time than the other.  This happens.  Usually because one party needs more time to share or process information or form a settlement response.  Be prepared for unequal division of time and wait time.

Chat & Communication Features

When the mediator is in another room, you may need his or her attention.  The software may have features to reach the mediator such as:

·         Chat

·         Raising your hand

·         Asking for help

Tip:  If the software offers none of these or you are unsure how to use them, ask the mediator for a direct dial phone number to call if all else fails.

Likewise, if in joint session and you want to talk only with your attorney, ask for a break or timeout.  You may also be able to send a chat message to only your attorney.

Documents

If documents are important for settlement, know what documents you need and develop a plan with the mediator (and your attorney if you have one) before your session.

This may involve sharing documents in advance or during the session (such as with screen sharing).

Sharing documents calls for decisions about which documents go to whom, when, and how.  For example, some documents may be confidential and only intended for the mediator, while others may be needed by all.

Don’t let the what, when, and how of document sharing derail your mediation.  Plan in advance.

Tip:  If you’re unfamiliar with the video conferencing software, don’t try to screen share documents using unfamiliar software.  Especially if the documents contain sensitive information.  Instead, develop a plan for sharing documents securely and in advance using familiar tools and software.

Respect & Professionalism

During online mediation, make it your focus.  Distractions and multitasking show lack of respect for the mediator, participants, and the process.  And, detract from active listening and critical and creative thinking, which are essential to successful mediation outcomes.

Online mediation means you are on video.  Be aware of your demeanor, facial expressions, and camera positioning.  Also, some mediators do not allow participants to opt out of video or go off screen (which bring into question confidentiality and may result in termination of the session).

If participating from a place with background noise, use headphones and a microphone.

And as with in person mediation, talking over other participants does not help get your point across.  Quite the opposite.

Tip:  Model the behaviors you want reciprocated.

Conclusion

Online mediation is here to stay.  With its many conveniences, advanced planning will help you make the most of it and set yourself up for mediation success.

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation.  Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.