The other day I decided to treat myself to a handcrafted drink at Starbucks. As I approached the store, I saw another customer approaching. There was no question in my mind that he was going to order 5 drinks for his coworkers. I picked up my pace… I was going to get there first. And I did. But then something came over me. I opened the door and held it open for my competition to enter first. I think he was stunned. Then, as we got to the counter, he suggested I order first, as he had several drinks to buy. I was stunned. There was a lesson there. 

Most mediations start with parties in a competitive mindset. No surprise there, as they are in mediation because of some disagreement, and their goal is to win something from the other party. The parties will state their positions and why they are right, and the other is wrong. Often expressed with emotion. 

Let’s say the financial value of the dispute is $2500. The first party is asking for that amount. Not unexpectedly, the other party says, “not one penny.”  The mediator’s job is to remind both parties that neither will likely get their full demand.  What the mediator is encouraging is that one party step up and make an offer to settle. That is what I call the “magic moment.” It communicates the willingness to compromise and have further discussion, and magically, emotion tends to evaporate.

One way to move the parties to compromise is to reframe the party’s needs. The $2500 demand may be based on some actual cost, but a component of that demand is likely driven by something else. Maybe one party felt they were disrespected, ignored, or treated unfairly.  By reframing the demand, it is often possible to understand the range of motivations driving the dispute and address them. Keep in mind that mediation allows considerable flexibility in structuring a settlement. In this case, the settlement might include an apology and a financial payment. 

Making the first offer requires taking a risk and a bit of strategy. If somebody does not make the first move, there is a deadlock, and time is wasted. The first offer, however, needs to be reasonable.  In our example, if the first mover wants to offer $100, they need to ask themselves what the reaction will be from the other party. You can guess it will probably be taken as an insult…back to square one. 

Mediation is a process. It requires both parties to understand all positions and then move to a give-and-take to create a compromise. The real magic moment is when both parties shake hands and leave the session ready to move on with their lives…and celebrate by treating themselves to a hand-crafted drink at Starbucks…or maybe Rise Up. 

Steve Forrer, the former dean, and vice-chancellor of the University of Maryland Global Campus, is currently a mediator for the Maryland District and Circuit Courts. Questions can be submitted at www.doncastermediation.com/contact for Steve to answer in this column. He also accepts private mediation.

Do You remember the conversation between the disoriented Alice and the mysterious Cheshire Cat in Lewis Carroll’s classic children’s tale, Alice in Wonderland? 

 “Would you tell me, please, which way I ought to go from here?” “That depends a good deal on where you want to get to,” said the Cat. “I don’t much care where–” said Alice. “Then it doesn’t matter which way you go,” said the Cat. “-so long as I get SOMEWHERE,” Alice added as an explanation. “Oh, you’re sure to do that,” said the Cat, “if you only walk long enough.”

In almost every mediation I have conducted the first step is to get both parties to understand the features of the mediation process. It is voluntary. It is confidential. It is flexible.  My role is to lead a conversation among parties, resulting in a settlement acceptable to all. To be honest, sometimes guiding that conversation can feel like navigating Alice’s Wonderland. 

Early in the mediation, confusion, anger, and emotions often run high. No surprise, of course, as that is what conflict creates.  It is important to let the parties express their emotions. Only after that happens can the task of finding common ground begins. 

Finding that common ground begins by helping the parties discover their goals.  Why are they “really” in conflict and what is the impact conflict is having on them and their lives? Although not often expressed early in the conversation, “getting one with my life”, often becomes the goal upon which to focus. Focusing on a set of goals will move the mediation along. Unlike Alice, who wanders and wonders where to go, goal-oriented mediation can help the parties get to a better, although not perfect, place. 

Simply asking what your situation would be like if this issue was settled can move the needle. Dwelling on the past simply avoids thinking about the future and, more importantly, figuring out how to get there. Mediation can create the roadmap and the first steps in getting there. It is very powerful. The power of mediation is that it encourages creativity in finding common ground. 

Speaking of creativity you may recall my last column, “One Scoop or None.” Long story short, my grandkids wanted 2 scoops from the upscale local ice cream place in Easton. Cost being a concern, I explained that one scoop from this store tasted so good that it was worth 2 scoops from the place around the block. The option was one scoop or none. They took the one-scoop option. Story over. Well, not quite. The next day, a delegation approached me with the idea that they wanted to try the ice cream from the other, less expensive vendor…and of course, the ration would be 2 scoops following my earlier logic. Hoisted by my own petard!

Steve Forrer, the former dean, and vice-chancellor of the University of Maryland Global Campus is currently a mediator for the Maryland District and Circuit Courts. Questions can be submitted at www.doncastermediation.com/contact for Steve to answer in this column. He also accepts private mediation.

Our grandkids are wonderful, but they are kids.  On a recent visit we took them to one of the “high end” ice cream stores in Easton. Translation – Pricey.  Since there were 7 of us, I made the prudent financial decision that one scoop would serve everybody well. Upon that restrictive announcement the reaction was, shall we say, a bit over the top. “Unfair! We always get 2 scoops.”  At that point I decided this was a “teaching moment.”  Either you accept the offer of one scoop or get no scoops at all. “Yes, but our other grandparents always get us 2 scoops!” I held firm. “One scoop of this ice cream tastes so good it is worth two from the average ice cream purveyor.” That intrigued them, and emotion was replaced with the promise of a better state. Reason prevailed, and it helped that the ice cream was really good.

This reminded me of several mediations I have recently conducted. By definition every mediation requires the parties to accept conditions that are not likely their first preference.  As a mediator to a conflict, my job is to guide a confidential conversation between parties helping them reach an agreement that is satisfactory to both, albeit not perfect for either. However, when one party starts with “They are not getting one red cent from me” the task can be a challenge. After initial emotion subsides there is an opportunity to understand the goals of each party…and there are often several. As they tell their version of the story hints will emerge as to the issues that need to be resolved.

Is it just about money or is it also about being treated unfairly in their view? Is an apology needed? Was it a matter of poor communication or unmet promises? As the settlement is crafted all these issues can be included.  One of the powers of mediation is that it can include a solution that is wide ranging, much more so than a narrow court judgement, for example. 

Often parties choose a position that is based on limited or poor information. What do you do if you do not have complete information?  You make it up, of course. That is natural, and we do it all the time. When we act on partial or inaccurate information, we make assumptions about the other parties’ motivation and position. The mediation conversation can help complete the information picture and make it more accurate. 

Once my grandkids had a more complete picture of the one scoop offer, they understood that it was a decision about quality not quantity. I know what you are thinking…they still wanted 2 scoops…and they probably did. However, they were please with the imperfect result and so was I.

Steve Forrer, former dean and vice chancellor of University of Maryland Global Campus, is currently a mediator for the Maryland District and Circuit Courts. Questions can be submitted at www.doncastermediation.com/contact for Steve to answer in this column. He also accepts private mediations.

Driving by all the car dealerships on Rt 50 reminded me of the last time I bought a car. It was a grueling experience. I am sure you know what I am talking about.  It starts with a very friendly person helping you select the model and features. It then goes to the sticker shock stage. Then the ballet begins.  You start to leave. The salesperson follows and asks if you had a price in mind …and so it goes ending with “I will have to talk to my sales manager.”  Price is agreed and as you walk out the door you kick the dust thinking…” I should have held out for a lower price…the fact they accepted means I paid too much!”  Buyer’s regret is a fact in any negotiation. And the flip side is seller’s remorse.  It’s time to remember what my mother used to tell me, “Son, it’s not a perfect world…move on.”

The mediation process, is a form of negotiation.  Parties come to mediation with their own view of the problem, how it arose, and what the solution might be. Of course, if both parties saw things the same way, there would be no conflict. Mediation is a form of Alternative Dispute Resolution that works together with both parties to find a common solution. 

Opening statements in mediation tend to be adverse, accusatory, and demand compliance with the presenter’s point of view.  Naturally, these divergent positions prevent an agreement.  That’s why they need the help of a mediator. The goal of mediation is to craft a settlement that is not perfect, but acceptable, to both parties. A skilled mediator will confidentially guide the conversation. Part of that process is to uncover each party’s motivation. Often the issue that is presented is one of several, and maybe not the most important issue to be resolved.  In the conversation, the mediator helps by restating positions in slightly different terms. This allows the position to be confirmed and fine-tuned, with less emotion and anger. If both sides can Identify the problem more clearly, and all its components, the chance of finding common ground is better.

That common ground, the settlement, is never going to be perfect for either party, and yes, as you leave mediation you are likely to be kicking the dust and wishing you had held out for a different outcome. The fact is, you will never know if a more favorable settlement was possible or if holding out longer for different terms would have sabotaged the settlement and sent you back to square one. There is great value in getting on with your life and leaving conflict resolved and behind you. It’s not a perfect world.

Steve Forrer, former dean, and vice-chancellor of the University of Maryland Global Campus, is currently a mediator for the Maryland District and Circuit Courts. Questions can be submitted at www.doncastermediation.com/contact for Steve to answer in this column. He also accepts private mediations.

I was following a tow truck on Rt 50 the other morning with a nice, late model, BMW on the flatbed. Nothing seemed to be damaged.  Maybe German engineering failed and it broke down or maybe it was being repossessed. Seeking the return of property through the  Maryland courts is a two-step process. The legal actions are called Replevin and Detinue.  

The first step, Replevin, is the first legal action filed in the District Court where you seek the return of personal property, with possible damages regardless of the amount in dispute.  The property may be your late model BMW or your favorite aunt’s tea set. It allows for the possible return of the property based on a show cause hearing, a hearing held prior to the trial. In other words, the judge can order the property returned or the posting of a bond for its value, pending the trial.

Detinue is the second step and requires a trial to actually determine the rightful owner. For property values up to $5000 the action is filed in District Court. If a claim is between $5,000 and $30,000, the claim may be filed in either District or Circuit Court. Detinues for more than $30,000 must be filed in Circuit Court. Detinue is the legal action for the return of personal property or the property’s value, plus possible damages.

The Courts encourage parties to mediate these personal property cases. Mediation can occur at either stage of the process. Mediation allows the parties to confidently discuss the issues around the ownership of the property. The mediator’s job is to facilitate a conversation to help discover a mutually satisfactory settlement between parties.  They will not make the decision on ownership and will not provide legal advice. Mediation has a very important feature. The process puts the parties 100 percent in control of the outcome. In a trial the judge will decide who gets the property or financial equivalent.  Mediation allows a much more flexible settlement. It can allow payment terms, delivery conditions, timelines or any other terms that are mutually agreed. 

Whether the property issue concerns a dog, BMW or tea set mediation can provide a confidential and flexible process to settle where the property ends up or what financial compensation is satisfactory. For details go to https://mdcourts.gov/legalhelp/returnofproperty.

Steve Forrer, former dean and vice chancellor of University of Maryland Global Campus, is currently a mediator for the Maryland District and Circuit Courts. Questions can be submitted at www.doncastermediation.com/contact for Steve to answer in this column. He also accepts private mediations

If you have children and are divorcing, then a parenting plan becomes a very important document. This plan, also called a custody and visitation agreement, is a written agreement describing how the parents will work together to care for their children. It generally covers two very important areas. These are a schedule for when the children will be with each parent, and how they will make decisions about the health, education, and welfare of their children.

Especially when a separation is difficult, a specific parenting agreement can avoid or reduce the need for costly and time-consuming litigation. If jointly drafted, a good parenting plan will be specific and personal to the needs of the parents and their children.  In the best case, the plan is jointly drafted by both parents. Who else knows the needs of your children better than those who have raised them and cared for them? The alternative is to leave very important decisions to a judge who knows very little about your family. In fact, the courts would prefer parents work together to come to a satisfactory parenting plan.

Drafting a parenting plan is not easy.  There are dozens of decisions to make. These include how the time will be divided between parties; how holidays and vacations are planned; authority over physical, mental health, and educational decisions. Reaching agreement on these matters can be difficult and emotional. Here mediation can be very helpful. A mediator is a neutral third party who helps guide the conversation to decisions that work best for all concerned. During the process, the mediator helps to keep the lines of communication open, create ideas, and assist in making decisions. Mediators help keep the couple focused on the issues at hand. 

In some cases, divorce attorneys may suggest parties attend mediation to work through the parenting issues.  The parenting agreement will then become the bases for the divorce agreement. The court may also refer parties to mediation.

Mediation gives both parties more control over the decisions. They have more, and better, information than the court will ever have. Mediation offers more flexibility and creativity in finding solutions.  This is more likely to create a more durable agreement. 

Together with the parents, the mediator explores all aspects of family life. They will focus on the best interests of the child, which is the major concern of the court. They will help determine how often, and when, each parent will see the child and which home will become the primary residence. They will help decide which religion the child will be brought up in and which schools will be attended. Since implementing the plan will require coordination and planning, a communication plan between parents will be agreed on. The parenting plan may also have a dispute resolution section, appointing a mediator and/or facilitator to attend to any disputes that may arise between the parents and to intervene in circumstances where one parent breaches the plan.

The Maryland Courts website has a number of resources including very good videos on child custody. Go to https://mdcourts.gov and search “child custody” or call the Maryland Court Help Center 410-260-1392 8:30 a.m. – 8 p.m. Monday-Friday.

For a divorcing couple with children, creating a parenting plan is one of the most important tasks to accomplish successfully. Mediation can be an effective process to help both parties design a plan that works best for their children and for the parents, too.

Steve Forrer, former dean and vice chancellor of University of Maryland Global Campus, is currently a mediator for the Maryland District and Circuit Courts. Questions can be submitted at www.doncastermediation.com/contact for Steve to answer in this column. He also accepts private mediations

You have both agreed to move on with your separate lives. Divorce. You can leave it up to the Talbot County Circuit Court to decide what do with all your property or you might choose the help of a mediator.

In Maryland, with some exceptions, all property obtained during the course of the marriage is generally considered marital property, regardless of who paid for it.  Normally, that includes such things as houses, cars, furniture, appliances, stocks, bonds, jewelry, bank accounts, pensions, retirement plans, and IRA’s. If you are splitting up there needs to be a decision as to who gets what, or the equivalent compensation.

There are basically three ways that it can go. The Talbot Circuit Court can make the decision for you or you can decide yourselves through mediation (or something called Collaborative Divorce), or some combination. If the parties are not in agreement on the division of property, then  Maryland’s Marital Property Act governs the division of property.  Under that act, all marital property is subject to what is called “equitable distribution.” That process is a complex one. The court first determines what property belonging to the couple is marital property.  It then determines the value of that property. Finally, the court determines who is entitled to what share of the valued marital property. It takes into account several factors. It can get complicated (see www.peoples-law.org/marital-and-non-marital-property-maryland). This has a down side, of course, as the divorcing couple has no control over the distribution of their property. That is where mediation can come in.

In Maryland, you cannot get divorced without going to the Circuit Court, but that does not mean you have to go to trial. Maryland offers “Mutual Consent Divorce” for couples who can come to an agreement on their own. Mediation can be a very efficient and cost-effective way to make dozens of important decisions about how marital property is divided. In mediation, the divorcing couple are guided through a conversation and decision-making process by a neutral party. The mediator will not take sides. They will not offer legal advice, so in some matters an attorney can be helpful. 

Mediation puts the divorcing couple in control.  There is no way a judge, who might hear several divorce cases a month, can possibly know your situation, interests, and values like you do. Mediation allows the parties to control how the property is divided, is quicker and less expensive. Because mediation is confidential, it also keeps personal information out of the public record. Mediation is less adversarial than litigation and reduces lingering animosity and distrust. It can help restore a working relationship between the parties. This is especially important if there are children, as many parenting decisions will need to be jointly made following divorce.

As part of the process of mediating the division of marital property, you will need to gather several documents, for example: real estate and vehicle valuation, savings and checking account balances, value of financial assets like stocks and bonds. You will need to determine the value of personal property like the contents of all homes owned, jewelry, art, antiques and other collectibles of significant value.  This information will provide the basis for the mediation.

Choosing mediation does not cause you to lose your right to litigate your divorce in front of a judge. You still have the option of going to court.  With some exclusions, any information shared during mediation will remain confidential. Mediation can save time and expense and, most importantly, give the parties control over the division of their property. For more information about divorce in Maryland go to https://mdcourts.gov/legalhelp/family/divorce.

Steve Forrer is in Easton. He is formerly Dean and Vice Chancellor of University of Maryland Global Campus. He is currently a mediator for the Maryland District and Circuit Courts. Questions can be submitted at www.doncastermediation.com/contact for Steve to answer in this column. He also accepts private mediations.