Archive for Conflict Resolution

Seven Tips to Help Clients Prepare for Mediation

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Prepare for Mediation

So you have the big mediation date planned.  You hope the mediator will be able to work whatever magic she has so you can move the case to settlement and put the case to bed.  You’ve prepared yourself.  You know the law.  You have your arguments ready.  You’ve done your study of the facts.  But you forgot something crucial.  You forgot to prepare the most important person to your case—the person who actually has decision making power—your client!

Clients who prepare for mediation simply do better.  Client preparation significantly increases the chances of reaching a settlement.  Preparation is an often overlooked component of successful dispute resolution.  Importantly, clients are happier when they can settle outside of court.  So, here are seven tips to prepare your client for mediation.

Download our free tip sheet to
make sure you have prepared
your clients for success in mediation.

#1: Make sure the client understands the mediation process.

To prepare your client for mediation, it’s important for them to be clear on what is expected of them in mediation, and what the role of the mediator will be.  Mediation is not court. It is not counseling or therapy.  It’s a negotiation facilitated by a third-party neutral.

The mediator is there to facilitate and to help people bridge their gaps from a neutral perspective. The mediator doesn’t give legal advice and doesn’t get a tie-breaking vote if the clients disagree.

All decisions are up to the parties to mutually agree.  Mediation does not require people to get along. A good mediator will facilitate the conversation and bring balance — even in cases where one party may be a better negotiator than the other.

#2: Educate your client on the relevant law.

It really helps if your client is prepared and armed with information.  This reduces the amount of time the mediator has to spend educating the client.  If they know what their rights are before they come, then they are more able to consider proposals for settlement.

Also, assure them no one will be expected to sign binding agreements without the advice of counsel. This goes a long way toward calming any fears of being “tricked” into an agreement.

#3: Prepare your client to manage emotional responses.

People come to their conflicts with a myriad of emotions.  Most of us, whether we admit are not, make most of our decisions through the lens of our emotions.  This is fine unless the emotions become so intense that we lose our ability to think rationally.  In divorce cases in particular, emotions affect almost all of the clients decisions.  Sometimes parties themselves in the difficult state of fight or flight and are unable to think clearly.  If left unmanaged, a negative emotion can make reaching accord much harder.

Consider mental health professionals to coach the client.

If you are like most attorneys, you have not been trained in psychology.  It’s good practice to know where your limitations are.  Why not involve a mental health professional to act as a divorce coach to prepare clients to prepare themselves emotionally for what might be a challenging meeting.

Help the client come up with strategies to stay calm to help with rational decision making.

Coach your clients on the importance of managing one’s own emotional responses.  It’s good to normalize coping tools such as taking a break or breathing.  If you are going to be there with your client during the mediation, come up with a signal, such as a keyword or a hand gesture, to indicate when a person is loosing it.  That way, when the signal is given, you can take your client outside to calm down.

A good mental health professional can even help the client come up with mindfulness tools to keep them grounded.  You want your client to bring his or her best self so that she or he can negotiate rationally.

#4: Make sure your client realistically understands their best alternative to alternative to a negotiated agreement (BATNA).

It’s common for a client to have unrealistic expectations about how good their case is.  They may believe that their case is a slam dunk and that all they need to do is get in front of a judge so that can explain their case.  Naturally, the judge will see it their way.

But we all know that such is not always the case.  In Roger Fisher and William Ury’s seminal work, Getting to Yes: Negotiating Without Giving In, Fisher and Ury coined the phrase of the “Best Alternative to a Negotiated Agreement”  (BATNA for short). This is basically your client’s best case scenario if they end up in front of a judge.   A strong BATNA can empower decision making.

A client with an overoptimistic BATNA will make choices that put them at risk.  If they have a more realistic BATNA, it’s an important tool in negotiating a mediated agreement.  If a proposal is superior to your BATNA, then should take it.  Having a proposal that is worse than your BATNA will result in a person being less like to accept a proposal.

Be careful, however, that you as the professional also have a realistic BATNA.  I can’t tell you how often I have seen attorneys poorly advise their client because of an unrealistic BATNA.  They then go to court and sometimes get an unpleasant surprise.  So make sure you are thinking things all the way through yourself!

#5: Make sure your client realistically understands their worst alternative to a negotiated agreement (WATNA).

Fisher and Ury also teach us the phrase “Worst Alternative to a Negotiated Agreement” (WATNA for short).  Basically, the WATNA is the worst case scenario if your client ends up in court.  Sometimes a proposal is worth taking simply because it could be so much worse.  It’s a strategy of minimizing risk.

If your client is unrealistic about the worst case scenario and therefore has an uninformed WATNA, that can be very dangerous.  Your client may walk away from a deal that minimizes risk because he or she doesn’t understand how bad it can be.  Just like with the BATNA, make sure you are being realistic too.

I’ve seen a lot of attorneys advise their client not to accept a reasonable proposal only to go to court and do worse.  Client’s don’t love it when that happens- especially if they acted on your advice.  So, make sure you’ve got the BATNA right and be ready to move your BATNA or your WATNA once you get into the negotiation and learn new information.

#6: Get the client away from a fixation on things being “fair.”

Fair is the “F” word. Instead, focus on making a “good business decision.”

In negotiations, “fair” is largely meaningless.  What one person may define as fair may be worlds apart from what the other party defines as fair.  I find it best not to got there.  Fair is the “F” word in my conference room.

Rather, I coach my clients to leave “fair” behind and stretch for a good business decision.  If everybody is giving something up and a little disappointed, that means we are compromising… and that is GOOD.

Help your clients look for an agreement they can live with rather than an agreement that will conform to a mythical understanding of fairness.  Sometimes, the deal won’t ever be perfect.  But if you want your client to stay out of court, it may just have to be good enough.

See also: Why “Fair” is the F-Word in Divorce Negotiations

#7: Teach your client how to make realistic proposals.

He or she isn’t negotiating to get a bargain on a used car. It is a waste of time to offer terms pushing the extremes with the sole intention of pushing the other party to come closer a desired result. It is the road to frustration, mediation breakdowns, and a date in court in front of a judge.

See also: Tips on Making and Receiving Proposals

Download our free tip sheet to
make sure you have prepared
your clients for success in mediation.

Ways to Avoid Mediation Mistakes Too Many Lawyers Make

Early intervention: Why mediation early in a family law case can save a fortune in fees and stress.

Neutral Private Settlement Conference

Tips on Making and Receiving Proposals

If your family law case is at a crossroads, consider mediation to take it from conflict to quick conclusion. Photo: Geralt/Pixabay proposals

If your family law case is at a crossroads, consider mediation to take it from conflict to quick conclusion. Photo: Geralt/Pixabay

At times during your family law or divorce case, you will have the opportunity to make and receive proposals. Whether large or small, proposals are the backbone of negotiation.

A proposal is defined as a plan or suggestion, especially a formal or written one, put forward for consideration or discussion by others. During your negotiation, you will need to look at many different options and ideas for how to settle issues in your case. Proposals, even imperfect ones, serve an important role in moving the negotiation process forward.

If you are the party making a proposal, keep the following goals in mind:

Make It Specific. The proposal should be specific in its scope. A proposal is specific if it can answer the questions of “who, what, where, when and how.” Including as much detail as possible helps reduce ambiguity.

Less specific: “The children will be with Mother on every Tuesday.” Is less specific.

More specific: “Mother will pick up the children from Father’s house every Tuesday at 3 pm and will return the children to Father’s house on Wednesday at 3 pm.”

Specificity reduces miscommunication and misunderstandings.

Make It Realistic. The proposal should be realistic. Don’t make a proposal you know the other party won’t or can’t accept. You want to make proposals with a chance of being accepted.

Make It Possible. Be sure your proposal is something possible to do in the real world you live in. A proposal physically, intellectually, or emotionally impossible to perform really is a non-starter.

Based on Rational Evaluation. Especially in family law, it’s tempting to make a proposal based purely on emotional needs without rational evaluation. While your emotions are important, it is important your decisions are based on a rational evaluation of the facts.

Steps For Reviewing and Responding To A Proposal

If you are the party receiving a proposal, you should take the following steps:

Ask Questions. Make sure you understand the proposal before reacting. This is your opportunity to ask any clarifying questions before you decide whether or not to accept. If there is specific information you need before you can decide on the proposal, please be specific in letting your mediation team know what information you still need. It’s not helpful to simply accept or reject a proposal you may not understand. Take the time you need to be sure.

Respond. After you are sure you understand the proposal, there are three ways to respond:

  1. “I accept the proposal.” If you agree with the proposal, you accept and everyone moves forward to memorialize your agreement.
  2. “I do not accept your proposal, but here is my counterproposal.” If you do not accept the proposal, it becomes your responsibility to provide a counterproposal. If you would like to brainstorm ideas for a counterproposal, let your mediator help.
  3. “I need to think about it.” If you are not prepared to make a decision yet, that is perfectly understandable. You need not be rushed into a decision. You are encouraged to confer with counsel before agreeing to anything. If you need some time to consider the proposal, please provide your best estimate for your response whether you accept or offer a counterproposal.

Failure is Not An Option

You may notice “rejection” is NOT on the list. A blanket rejection without a counterproposal will simply halt negotiations. If a person rejects a proposal, that person has a responsibility to make a counterproposal.

Remember, there is no such thing as impasse in mediation! When you are stuck, it doesn’t mean you storm away from the table and declare a failure. It just means you and your mediation team haven’t found the right proposal yet.

But we will! Keep at it and be persistent and creative. You’ll get there. You might be surprised where you ultimately land if you keep an open mind to the possibilities.

Download our helpful “Summary for Accepting and Receiving Proposals”.

For further reading on proposals, see:

So, What’s Your Proposal?: Shifting High-Conflict People from Blaming to Problem-Solving in 30 Seconds! by Bill Eddy, JD, LCSW

Getting to Yes: Negotiating Agreement Without Giving In by Roger Fisher and William Ury


Ways to Avoid Mediation Mistakes Too Many Lawyers Make

Don’t blow up your chance of mediation by making these common mediation mistakes.

Attorneys get paid for good advice. Sometimes your clients take it, and sometimes they don’t.

But once in a while, attorneys could use some advice of their own. In my role as a mediator, I frequently observe smart attorneys floundering when it comes to advising their clients about mediation issues. When mediation isn’t the focus of your practice, it is understandable. Or if you are still new to the legal profession,  you may not have ever been exposed to any education about best practices in mediation.

If you fall into either of these categories, or could use a refresher, we’ve put together a list of common mistakes AND ways to avoid them based on our many years of experience with mediation as the focus of our practice at Weber Dispute Resolution.

Misunderstanding your role as an advising attorney

The advising attorney’s job is to ensure the client can make informed decisions. But often, attorneys act like litigators when they were hired to be advisors. When you are advising, your job is simply to advise your client about the law, and what they can expect if the matter proceeds to court. This is not the time to sugar coat reality for the client. Honesty is the best policy.

Remember, the client has chosen to mediate to avoid adversarial litigation. Approaching the case as a zealous advocate misses the mark. You are not in charge.  Your client is in charge. Ensure sure your client makes informed choices  by making sure they understand any potential results of the decisions affecting the final settlement results. Using your legal knowledge to think through all possible scenarios is your true value to the client.

Filing motions during mediation

Every now and then with a mediation, a client may get spooked about something. Maybe it’s about spousal support or child custody. They go to an attorney to file a motion while already engaged in mediation.  The knee jerk reaction to file a motion does untold damage to the mediator’s ability to manage and ultimately settle the case.

Introducing adversarial processes is destructive to mediation. Emergencies happen and I understand this. Rather than file motions at court, parties can schedule an emergency mediation session.

At Weber Dispute Resolution, you can often have an emergency addressed within 48 hours. Most of the time, we can resolve the problem WAY before a court can. In San Diego County, motions can take months to be heard.  The court is continually restricting what it considers an emergency. Ex parte requests are denied more frequently. In mediation, we may be able to short circuit emergencies before you need to file a motion.

Sometimes counsel is worried about jurisdiction for retroactivity of support. As a result, an attorney is tempted to file a motion for child and/or spousal support.  This is truly an unnecessary and costly exercise. Rather than file a motion, parties can agree by stipulation to reserve jurisdiction over retroactivity. Weber Dispute Resolution does this frequently in mediation. If you worry about needing to file a motion to prevent loss of retroactivity or some other jurisdictional issue, approach the mediator with a proposal to stipulate to retroactivity.

Proffering formal discovery

I get it. Old habits are hard to break. Sometimes an attorney barrels ahead and serves formal discovery during the mediation process. Again, this injects the adversarial element into a case and is an additional unnecessary cost.  As part of mediation, all discovery can be informal. Mediation can’t continue if financial disclosure isn’t forthcoming.

Rather than serve subpoenas or other formal discovery, consider bringing up the discovery concern during mediation. A good mediator will work with the parties to ensure all necessary discovery happens and all parties receive the information they need. Parties can stipulate and agree to deadlines to provide information as well as a list of what is to be provided. In my experience, people are more likely to comply with informal discovery requests when they are part of voluntary non-adversarial processes. However, when adversarial formal discovery appears, cooperation greatly reduces.

Treating the mediator like a judge

Sometimes an inexperienced attorney will ‘argue’ the case in mediation in front of the mediator, as if the mediator would rule on a decision like a judge. A mediator doesn’t get a vote.  The mediator’s job is to facilitate agreement, not to decide anything unilaterally. Arguing with the mediator like you do in court is counterproductive. Rather, coach your client on how to make interest-based proposals. Don’t try to convince your mediator regarding the merits of the case.  Instead, work cooperatively with the mediator to identify viable proposals.

Showing up for mediation without any notice

Occasionally, I will have a mediation session where a party brings their attorney without notice, and it’s a surprise to everyone in the room. I don’t oppose attorneys participating in a mediation process. In fact, I encourage it. But showing up to a mediation session without notice can feel like an ambush to the other party. It can also throw off the neutrality of the process.  Perhaps if the other party was notified, he or she might have wanted to have their own attorney attend.

If your client wants to you attend, talk to the mediator in advance so there are no surprises. You’ll waste your client’s money showing up as a surprise, causing the mediation session to be rescheduled because the other party doesn’t want to proceed. In my mediation process, attorneys are fine as long as both parties have counsel. Balance is key.

Assuming you need a retired judge as mediator

Mediators come in all shapes and sizes. Some are attorneys. Some are mental health professionals. Some are financial professionals.  A few are retired judges.

It’s important to hire your mediator based on the skill set you need for your client. A retired judge is ideal when you need an evaluative mediation, where the judge will offer an opinion of how he or she would rule if the case were in court.

Some cases require a facilitator rather than an evaluator. A facilitator helps parties learn how to listen and hear each other, and to communicate their needs and interests more effectively.  They really get into the world the clients are experiencing to find the clarity needed to uncover pathways to settlement. This requires specialized training many retired judges lack.

Spend time assessing the type mediation best suited to the clients and the case. Find a mediator who fits this need.

Using mediation too late in the legal process

Attorneys sometimes turn to mediation right before a trial starts, after years spent in litigation. This is a waste of time. An advantage of mediation is the potential to reduce your client’s fees. If you just want to churn fees, you can stop reading right now. But if you are the kind of attorney who cares about your client’s best interests, then you want to get your client into mediation sooner rather than later.

Use the mediator to manage the discovery process. Discovery is typically the most expensive portion of any case. Let the mediator help reach interim agreements rather than spending tens of thousands litigating interim motions. A good mediator can also do a lot to manage the case early in the process.  This will reduce unnecessary fees.  It reduces your client’s stress levels.  And it reduces YOUR stress levels, too.

Second guessing hard-fought agreements

Sometimes I will spend hours, days, or sometimes weeks with a party in negotiations. We perform a delicate dance stitching together a balanced agreement based on the emotional, legal and financial needs of both parties.  Then one person goes to their attorney, who was never in the room and has no idea of the context for the agreement. The attorney torpedos the agreement, undoing hours and hours of hard work. Inevitably, the case falls out of mediation, because the other party becomes angry the agreement is changing.

Be careful advising your client based on hearsay. Take time to understand the context of the agreement, how and why it was reached. It helps if the client involves you earlier in the process, rather than bringing an agreement to you after the fact without all the facts.

Avoid mediation mistakes! Call on Weber Dispute Resolution for advice

I welcome attorneys calling me to get context. With the parties’ permission, we can have a discussion and figure out where your case landed, and how it can be redirected down the right path. Contact us online today or call us at 858-410-0144.

Eight San Diego Mandatory Settlement Conference Prep Tips

I have learned what works for attorneys preparing for the MSC, and what doesn't. You can benefit from my experience with these eight tips.

I have learned what works for attorneys preparing for the MSC, and what doesn’t. You can benefit from my experience with these eight tips.

I have volunteered as a mandatory settlement conference (MSC) temporary judge in San Diego Superior Court for many years. I’ve also privately negotiated hundreds of settlement conferences. I have learned what works for attorneys preparing for the MSC, and what doesn’t. You can benefit from my experience with these eight tips.

While I’m sure these ideas will work in any court-facilitated settlement program, these are written specifically with the San Diego family law practitioner in mind.

Take the meeting seriously.

Getting scheduled on the mandatory settlement conference calendar in San Diego County can take months. Settlement judges are volunteers and there aren’t enough to go around. A lot goes into assigning and calendaring your case.

Your client expects you to be ready for negotiation. He or she is paying you to prepare. You are doing your client a disservice and insulting the settlement judge if you are ill-prepared by wasting their time and money.

Many times in my role as a volunteer settlement judge, attorneys aren’t taking the meeting seriously. This is a lost opportunity for clients. Help your client find closure without the expense and trauma of litigation. If you still have to proceed to trial, perhaps you can at least solve some issues — the difference between a three-hour set and a three-day trial on the wheel.

Prepare a well-written brief.

When volunteering as a settlement judge, it can be disheartening to receive a flimsy ill-prepared brief full of typos, incorrect names, and out of date citations. It is simply unprofessional and could be malpractice. Your MSC brief needs ALL of the information you would take to trial. It’s poor form to make arguments or claims in the law unsupported by the evidence in your brief.

If documents are required to make your client’s Epstein claim or reimbursement request, you’d better have them attached to your written statement. If you don’t, an experienced attorney may successfully get it excluded when you bring it to trial.

Remember these key pieces of guidance from the MANDATORY SETTLEMENT CONFERENCE GENERAL INFORMATION sheet (form SDSC D-047 – Emphasis Added):

“All parties must be prepared to seriously discuss how they would be willing to settle their case.”

“The brief must include all the information required for a trial brief as set forth in the California Rules of Court, rule 5.394.”

San Diego rules encourage the use of the Mandatory Settlement Conference Brief-Long Cause Hearing Brief-Trial Brief (form SDSC D-241). Follow the form like a checklist to make sure you get the information into your brief you need or construct your brief of a pleading following the same format.

Meet and confer meaningfully before the MSC.

Don’t waste time – time is money in legal matters!

In San Diego, parties are not required to meet and confer before the MSC. But why wouldn’t you try? Maybe you could settle the case before wasting anyone’s time or money. It never hurts to talk about how far apart you might be. You may find more common ground than you thought.

If you can settle without an MSC, do it.

I participated in a conference not long ago where it was clear a simple phone call could have settled everything.  There was no need to put the parties through the expense of an MSC. The briefs showed the attorneys failed to meet and confer. The parties paid a lot of money for their attorneys to prepare and participate when a brief phone call could have done the trick. I scheduled an entire day of billable time to review the briefs and to participate as a settlement judge. Instead of billing their clients to prepare an MSC brief, they could have just prepared the MSA.  Now they are billing their clients for both.

Don’t schedule the MSC if you don’t intend to settle.

At several settlement conferences, it was clear there was never any serious intention to settle anything. The attorneys were punching their card so they could get a trial date. If it is clear a case can’t settle in a mandatory settlement conference, the judge may be willing to skip the MSC and set the case for trial immediately. The court doesn’t want to waste valuable MSC time either.

Be polite and professional.

You shouldn’t need a referee during a settlement conference! Be polite and professional.

Years ago, I was disappointed by the unprofessional behavior of two seasoned attorneys in a conference They refused to speak to each other or to sit at the same table. I even had the two parties come to me together and confide with a longing look on their faces how they didn’t understand why their attorneys refused to settle.  They asked if I could help. I was astonished, but I made the attempt. The attorneys struggled but finally managed to put their clients first and we concluded the case.

How embarrassing. No wonder people hate lawyers.  Do us all a favor.  Check the bad behavior, the grandstanding, and the aggression at the door, and help your client settle.

Prepare your clients for compromise.

Meriam-Webster defines compromise as “to come to agreement by mutual concession.” For there to be a compromise, both parties need to give a little.

Going to court has inherent risks. You may think your client has the mythical “slam-dunk” case. There is no such thing. The case may not go exactly as you thought.  In family law, judges have a lot of latitude and discretion. Help your client understand that the risk of going to trial, even if you think the law supports his or her position.

When two intelligent and experienced attorneys come up with diametrically opposed arguments, one of them has to be wrong! The value of settling includes reduced stress and legal fees, and acts as an insurance policy to minimize risk. Preparing your clients by getting them away from notions of “fair” and “justice” and towards the merits of a good business decision can make all the difference when you get to the settlement conference.

Read also “Why ‘Fair’ is the F-word in Divorce Negotiations

Consider hiring a private settlement conference judge.

You can stipulate to a private settlement conference. Judges are happy to clear up space on the MSC calendar. Your client will enjoy some real benefits:

  • You can select your judge and know he or she is experienced and a good fit for the case.
  • You can make sure your settlement conference is facilitated by someone trained in dispute resolution.
  • Meeting at a mediator’s office for a settlement conference is less formal and less stressful than court.
  • You are not constrained by the three hour time block for an MSC in court. You can take time to come up with a thoughtfully considered agreement.

Read more about private settlement conferences here.


Read also Early Intervention: Why mediation early in a family law case can save a fortune in fees and stress .


Take the Grinch Out of Holiday Shopping After Divorce

The idealized Norman Rockwell image of the nuclear family holiday shopping isn't the reality for the large number of divorced families in the U.S.

The idealized Norman Rockwell image of the nuclear family isn’t the reality for the large number of divorced families in the U.S.

Happy holiday images depict a perfect family, home and hearth. Norman Rockwell perfected this idealized holiday with a mom, dad, and those above average children gathered around the Christmas tree or lighting a menorah.  Of course there’s a nice fire crackling in the fireplace. Children are spellbound by lights, ornaments, wrapping paper, and gifts.

This ideal is far from reality for many families after a divorce. Unfortunately, some parents make the circumstances much worse than they need to be. One child of divorce confided in me recently. She lamented years later as an adult how the holidays were the worst part of her childhood. Her divorced parents seemed to fight even more than normal.

Do you really want your kids remembering the holidays this way for the rest of their lives? Do you want your kids to celebrate all the joys of the season, or suffer through the Nightmare Before Christmas – and after Christmas, too!

One big source of friction after a divorce during the holidays revolves around buying gifts. Some folks really struggle with holiday shopping. It’s something divorced parents don’t often think about. But it is important to figure out how to coordinate presents for your kids from both of you and both sides of the family together.

Here are some tips from an experienced family law attorney who has seen divorce parents at their worst during the holidays.

Don’t turn Christmas into a competition

The holidays are meant to be a special time for families. You’re missing the point if you turn it into an ugly war between parents trying to outdo the other and literally buy your kids’ affection. If there’s a really special gift your child would like, try to agree to go in on it together and make it a joint gift. It could mean the world to your child if the tag said “from Mom and Dad.” This is the greatest gift to the child of divorced parents.

Make a list together for holiday shopping

I know, it was a monumental struggle to agree on the holiday shopping list when you were married.  How can you possibly work together now? I assure you it’s possible. Make a point before the season starts to exchange ideas about what gifts you’re going to get the kids. It will be a mess if you both buy the same things. Agreeing on a shopping list goes a long way to reduce awkward moments.

Discuss what gifts are appropriate

Try to work together within reasonable limits to make your child's holiday dreams a reality. Photo: Anna Gin/Creative Commons

Try to work together within reasonable limits to make your child’s holiday dreams a reality. Photo: Anna Gin/Creative Commons

Don’t assume you agree on what gifts are appropriate or not appropriate for your child. Talk about it. I’ve seen many occasions where one parent who wants to limit screen time is upset when the other parent bought a smartphone or Xbox for a child. In one case, a parent bought an “M-rated” video game against the other parent’s wishes. Parenting confusion with different expectations confuses kids. You may have different values, but you need to figure out a way to meet in the middle and compromise. This is hard enough for married couples!  If you get stuck and can’t agree, consider meeting with a mediator to find solutions.

Agree on a budget

I’ve seen too many co-parents compete with one another about who can outdo the other parent.  Agree on a budget and stick with it.

Consider opening gifts as a family together

Consider opening presents together with your kids.  Children appreciate time with both parents.  This might not be a choice for everyone. If it’s too difficult and you can’t keep it together, you may need to decline. There is no shame in this. But if you can pull it off and put your differences aside long enough to get through the holiday, it can really be special for your children. Many years later when they are adults, perhaps parents themselves, your kids will understand the real gift you gave them.

Holidays after a divorce blow up the images of the perfect holiday, making the painful changes in your life even harder to cope with. It’s hard for your kids, too.  But this is the season of ‘Peace on Earth.’  With some effort – maybe a LOT of effort – you can make the holidays into special memories rather than a nightmare haunting your kids for the rest of their lives.

A SMART Agreement for Holiday Co-Parenting

SMART parenting agreements can ensure happy holidays even when you’re divorced.

At Weber Dispute Resolution, we believe in crafting SMART agreements.  SMART stands for Specific, Measurable, Attainable, Relevant and Time-Bound. SMART agreements help with enforcement, and make it clear to both parties what is required for them to stay within the boundaries of their agreement.

Here’s why a SMART agreement makes things so much easier:

  • When an agreement isn’t SPECIFIC, parties become confused over exactly what they agreed on
  • Unless performance can be MEASURED in some way, it is difficult to determine where the boundaries are, and when they’ve been broken.
  • Any agreement must be ATTAINABLE – something you can easily comply with. People can’t be expected to do the impossible – it’s setting them up to fail.
  • Agreements require RELEVANCE to make sense in any particular circumstance.
  • Finally, linking the provisions to TIME-BOUND deadlines lets people know when things should happen.

So, unless your agreement is a SMART agreement, there is a good chance you will be facing problems down the road.

This is especially true when we are talking about holiday co-parenting.  People can become emotional during the holiday season. It’s understandable and predictable. Holidays are all about family.  Not having your children with you and with your extended family during the holidays can be hard to cope with.

Because people are so emotional about the holidays, parenting decisions about holiday traditions and practices can become a significant source of conflict.  When I used to litigate family law cases in courtrooms, unfortunately for my clients, they paid me a good amount of money to sort out holiday schedules and last-minute misunderstandings.

With a SMART holiday co-parenting agreement, you can avoid big emotional blowouts AND writing big checks to lawyers. Here’s how.

SMART – Specific

When crafting holiday orders and agreements, make sure you are very specific about what the schedule is.  Just saying that the

Put your mediated agreement in writing if you intend it to be legally binding. Photo: Antonio Litterio/Wikimedia

SMART agreements are specific. Photo: Antonio Litterio/Wikimedia

kids are with mom on Christmas in even-numbered years and Dad in odd-numbered years is a start.  But it is not very specific.  Get into the weeds about when exactly Christmas starts and ends.  Where will the kids be delivered or picked-up.  I have even seen people get specific about whether a joint present opening time would happen and how it would go.  The more specific your agreement is, the less likely there will be misunderstandings.

Another example is with New Year’s Eve and Day.  When talking about New Year’s Eve and Day and odd years versus even years, which year counts for odd or even?  Is it New Years Eve, which falls in one year, or New Years Day, which falls in the following year?  This kind of lack of specificity can lead to confusion.

A colleague of mine recalled a poll on a local list serve account for family law attorneys.  She learned that when confronted with the question of which day, New Year’s Eve or New Year’s Day, counts for purposes of even and odd, roughly half of the respondents thought it was New Years Eve while the other half thought it was New Years Day.  Get clear, and you can avoid trouble.

SMART agreements are timebound.


SMART – Measurable and Time-Bound

When talking about parenting schedules, measurable and time-bound tend to go together. It’s good practice to have a clear start and end time when describing holiday periods. A common provision is  “The child shall spend Father’s Day with the father every year.” This is too vague.

Much better and a more effective provision: “The child shall be with father on Father’s Day every year from 8 a.m. the morning of the holiday until 8 a.m. the day after the holiday.”

SMART – Attainable

It seems like a no brainer an agreement or order should be attainable. But sometimes, people don’t realize a provision is unattainable. In a recent case, the court order described as written the children would be with Mom on Christmas Day at 10:00 a.m. and returned to Dad at 10:00 a.m. the next morning. However, the parties lived more than 3,000 miles apart! These parents could not possibly make this work from any practical standpoint.

In another case, the children were to alternate between mom’s house and dad’s house during the holidays for overnight visits in an even and odd patterned schedule. The problem? One of the parents was incarcerated.

So it’s important to avoid these kinds of attainability problems by making sure the agreement’s boilerplate language is customized to you and written to fit your unique circumstances.

SMART – Relevant

SMART agreements must be relevant to your circumstances.

Holiday co-parenting orders should be relevant to your situation. In one of my cases, Family Court Services made Christmas co-parenting recommendations. The parties only celebrated Jewish holidays. Clearly, something lost in translation was missed.

As practitioners, it’s tempting to fit people neatly into nice little boxes. But it makes little sense to force parents to observe a holiday schedule for holidays the parties don’t even celebrate. In another case, attorneys included a provision for Fourth of July. The parties didn’t celebrate Fourth of July and weren’t concerned about having the kids on Fourth of July.

The SMART Approach to Happy Holidays When You’re Divorced

 Filling a holiday co-parenting agreement with irrelevant provisions does nothing but confuse things, and clutter up your case with unhelpful rules. To say nothing of having an agreement that falls into the “TL; DR” category (that’s Tool Long, Didn’t Read).

Your agreement should be meaningful, with SMART rules that make sense for you and your family alone. Work with someone who will listen to your needs and get you know you, your co-parent, and your kids, and create something that fits. You won’t be fighting against it and arguing about it, which doesn’t help anyone.

Want to clean up your holiday co-parenting schedule BEFORE the holidays get here? Would you like to avoid those frantic last minute calls to a lawyer to fix your holiday parenting schedule? Contact Weber Dispute Resolution now, and you can have truly happy holidays without a care. Isn’t that the holiday gift all families wish for?