Law Tips: Mediation from One Divorce Lawyer’s Perspective, Part 1

It’s my pleasure to welcome to Law Tips Bruce Pennamped, Carmel, Indiana, to share his particular expertise in mediations. He brings valuable pointers for minimizing your client’s regrets and preserving your professional reputation.

From a practitioner’s perspective what is the best way for a divorce lawyer to prepare for and work the mediation session?

In my view, it is to get the issues framed before you arrive at the session. The work should be done and the outcome communicated to the mediator prior to the 11th hour, i.e., the night before the session. The mediator’s job is not to sift through the discovery and/or “figure it out” for the parties. If left to those devices the process will be more cumbersome, frustrating and expensive than need be and, more often than not, produce some sort of buyer’s remorse after the fact.

According to Ira Daniel Turkat, PhD, Licensed Psychologist, Family Law Litigation Strategist, in an article published in the American. Journal of Family Law, Vol. 28, Number 3, Fall, 2014: “A recent Harvard Negotiation Law Review found in a five-year period more than 1,000 state and federal decisions reported in which mediation itself was the subject of litigation. (FN omitted). This should come as no surprise because it is not uncommon to hear an experienced mediator profess that, ‘one definition of a good settlement is when both sides are equally unhappy’ (FN omitted) or that ‘a truly good settlement is one that leaves everyone unhappy’. (FN omitted). Although not a universal viewpoint, if many start with the notion that a ‘good’ mediated agreement will produce up to I00 percent of clients unhappy with it, reducing settlement discontent would appear increasingly unlikely.”

So what, you may ask? The “what” is my exposure from a professional standpoint and your reputation as a mediator.

As I prepare for mediation I try to minimize the possibility of “settlement regret”. As Dr. Turkat posits: “The effort to prevent settlement regret begins by avoiding, eliminating, or minimizing those factors believed to increase risk for its development, when possible ….. first steps might include the following:

  1. Read your client well so that you don’t encourage adopting the wrong language or terms.
  2. Aim to create an agreement that ends conflict.
  3. Approach settlement as a means to an end and not as the primary goal.
  4. Reduce or eliminate unnecessary pressures to settle.
  5. Do not encourage a rush to an agreement at the expense of proper consideration.
  6. Approach unresolved issues with specificity over ambiguity.
  7. Do not advise silence on known issues of concern.
  8. Do not create terms that sound right but are unrealistic.
  9. Anticipate where things can go wrong and create terms to prevent that.
  10. Articulate how the other party could out maneuver the final version of the proposed agreement.” ld p. 128

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We’ll take a break at this point to digest Mr. Pennamped’s introductory pointers. Next week he’s back with us at Law Tips to delve further into his mediation objectives and practices.

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About our Law Tips faculty participant:
Bruce M. Pennamped, Cross, Pennamped, Woolsey & Glazier, P.C., Carmel, IN. Bruce limits his practice to Family Law. He earned his BS and JD from Indiana University. Among the programs and activities he devotes time to are:

  • Certified Family Law Specialist by and, Co-Chair of, Family Law Certification Board;
  • Fellow of the American Academy of Matrimonial Lawyers;
  • Serves on the Indiana Child Custody and Support Advisory Committee, a Committee created by statute to make recommendations to the Indiana Supreme Court on the Child Support Guidelines;
  • Chair, participant on numerous panels, and author of texts for Indiana Continuing Legal Education Forum;
  • Pro bono Volunteer and Attorney, Hamilton County Guardian Ad Litem Program.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: Immigration Law Meets Family Law – Sweet Child of Mine

Indiana enjoys a wealth of variety and culture, due in large part to the immigrant community that plays a vital role here. However, a large immigrant community also brings complex situations that can arise as immigration law intersects with state and local statutes and practices, especially in the area of family law. Dallin Lykins, immigration law and family law practitioner with Lewis & Kappes, P.C., Indianapolis, offers Law Tips readers a few pointers in the child custody and support area:

Any time a client appears to have immigration ramifications or concerns, a wise practitioner would consult with an experienced, immigration law attorney to help resolve or prepare for any immigration issues. Current immigration law is codified in the federal Immigration and Nationality Act (“INA”). While most family law practitioners will not find it necessary to keep a copy of the INA in their legal libraries, a basic understanding of immigration law can help a practitioner spot legal issues involving immigration concerns, improve strategy, and avoid pitfalls.

Sweet Child Of Mine: Child Custody, Support and Travel
Indiana courts are primarily concerned about the best interest of the child or children when determining domestic and family law matters. Understanding how immigration issues may affect the relationship between a parent and child can be valuable for a family law practitioner.

Paternity
The immigration issues can begin as early as the birth of an immigrant’s child. Many hospitals require a social security number in order to list the parent’s name on the birth certificate of a child, and so many immigrant fathers may not be listed on the birth certificate. This can cause problems later on with both family and immigration matters. Fathers should take the necessary steps to remedy this error as soon as they can. If the father has not established paternity and is deported before doing so, this can be a serious problem, because it can be difficult to have communication with the individual or have him appear at any future hearings. *See update below regarding certain Indianapolis hospital policies.

Family law practitioners should make sure they understand the process in Indiana in order to establish paternity and do everything possible to do so in order to avoid confusion and frustration if a parent is later deported from the United States. Once a parent is deported from the United States, immigration laws require the individual remain outside the United States for a long period of time (five, 10, or 20 years). See INA §212(a)(9)(A).

Custody and Child Support
Some local judges or magistrates do not spend much time determining or considering the legal status of an immigrant in the United States. It should be noted, however, that cases do exist where a parent’s immigration status has been a component of a judge’s decision in determining custody. See Rico v. Rodriguez, 120 P.3d 812 (Nev. 2005). Government agencies (such as Department of Children’s Services, DCS) may take it into account. It is important to be able to correctly inform DCS of the different types of status and what they might mean to a family (i.e., when can someone apply for a driver’s license).

While immigration status may be considered in a custody determination, it should not automatically preclude an individual from being granted physical or legal custody of a child. For example, Indiana law does not make specific statutory requirements regarding immigration status in a guardianship filing, but the person’s immigration status can play a factor in the judge’s decision. Since there are so many different types of statuses of immigrants in the United States, the fact that someone is not a lawful permanent resident or citizen of the United States does not automatically signify the person cannot work and support a child here in the United States. Further, it does not mean the immigrant will automatically be deported from the United States. It also does not mean the individual will not be a suitable parent or guardian.

Child support can also have importance in the immigration context. For example, an individual seeking citizenship in the United States is not eligible to become a U.S. citizen if there is evidence she “willfully failed or refused to support dependents.” 8 C.F.R. §316.IO(c)(3)(i). A failure to pay child support can also affect a lawful permanent resident’s ability to travel or renew their Lawful Permanent Resident card. In determining child support some individuals may be hesitant to include employment if they are not employed with a legal social security card. Normally, reporting accurate income on a child support worksheet will not create immigration consequences, but anytime someone is working without lawful permission there can be serious immigration issues in the future. For example, if someone is found to have committed identity fraud or identity theft they can be deported from the United States or prevented from receiving many immigration benefits in the future. Also, fraudulently filling out an I-9** may lead to serious negative immigration consequences, including deportation.

Travel
A concern that often arises in dissolution proceedings is the fear one parent may travel outside of the United States with the couple’s child. In many instances, the dissolution decree or preliminary agreement should contain clauses requiring parents to sign off on passport applications or to give a child’s passport to the custodial parent or neutral third party. In order for a U.S. citizen child to travel outside the United States, the child must have a passport. See Department of State’s Web site, Click Here.

If the child is under the age of 16, either parents or guardians must be present when the child applies. If one of the parents cannot be there (perhaps because of deportation), the parent who cannot be present can sign a form consenting to the application of a passport. Id. If consent from the other parent is not possible, the parent accompanying the child can prepare and sign a form that allows the passport application to be processed. Id.

A parent’s travel with a child should be discussed and analyzed while considering the parent’s immigration status. Certain protections may need to be taken and included in agreements or decrees in order to protect the child and ensure strong cooperation and communication between the parents.

In Conclusion
Family and domestic matters can be complicated, time-consuming, and stressful. When immigration issues are added into that mix, they can become overwhelming. Having an understanding of and appreciation for immigration concerns will help attorneys make clients feel more comfortable and confident to discuss immigration matters that sometimes can be awkward, frightening, and uneasy to talk about with others.

While it is always important to be able to consult with a knowledgeable immigration attorney, family law attorneys in Indiana will become much better practitioners if they can adeptly discuss and confront immigration matters with their clients and help them consider aspects of their case they would not have thought of otherwise.

*Regarding issues with hospitals not adding a father’s name to the birth certificate when no social security number is present, I am informed that many hospitals in Indianapolis no longer prevent the father from being on the birth certificate. The person may want to contact an attorney if this happens.

**Form I-9: Employment Eligibility Verification Form. You may obtain electronic copies of English and Spanish versions of Form 1-9 from the U.S. Citizenship and Immigration Services (USCIS) website at wvvw.uscis.gov.

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We greatly appreciate Mr. Lykins participation in Law Tips. As a member of our faculty for the Immigration Law You Really Need To Know Seminar, Dallin Lykins covers a broad spectrum of these current issues for family law practitioners. To schedule your Video Replay or OnDemand CLE session, Click Here.

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About our Law Tips faculty participant:
Dallin Lykins grew up on a farm in Azalia, Indiana. He earned a B.A. in Communications from Brigham Young University in Provo, Utah. After graduating from BYU, Dallin worked as a speech writer and communications specialist in Washington, D. C., and later graduated from Indiana University Maurer School of Law in Bloomington, Indiana. He first began practicing with a small immigration law firm, and he joined Lewis & Kappes, P.C., Indianapolis, in 2012 as a member of the firm’s immigration law and family law groups. Aside from handling any type of immigration case, Dallin has worked as a certified domestic relations mediator in the state of Indiana for more than six years. He has presented CLE and other courses on immigration law in various settings.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: Collective Bargaining in Professional Sports

Summertime, baseball and CLE – a great combo! Occasionally the opportunity arises for ICLEF to offer this blend. Our recent Torts, Sports & All Sorts CLE at Victory Field in Indianapolis was one of those informative and exciting days. Attendees gathered relevant legal updates and then enjoyed the Indianapolis Indians vs. Buffalo Bisons game. Since these programs are a rarity, I’m especially pleased to have the following Law Tips contributions from Lee Christie, of Cline, Farrell, Christie & Lee; Indianapolis. Fresh from that day at the ballpark, Mr. Christie shares his rundown on collective bargaining in pro sports.

Collective bargaining is the primary means by which Club owners and players coexist in pro sports. In many ways, disputes between members of the sports industry are resolved in the same manner as they are in the steel industry. As such, agents within Players Associations (unions) represent players in labor-management disputes with their superiors. Collective bargaining agreements essentially govern all league operations. They generally include constitutions and bylaws, as well as rules and procedures for dealing with divisions in revenue (trend toward owners making more), salary caps, free agency, arbitration, draft restrictions, disciplinary rules, etc. The following is a breakdown of the current CB agreements in the three major pro sports.

In Major League Baseball (MLB), there are minimum salary requirements but no salary caps. Unlike in other major sports, the MLB does not recognize restricted and unrestricted free agents. Instead, when a player reaches free agency, the team can make him a qualifying offer. If the player declines the offer and elects to pursue the open market, the player’s former team is compensated with a draft pick. Players who seek salary arbitration sit before a three-person panel selected jointly by the MLB Labor Relations Department and the MLB Players Association (PA). The process is known as final offer arbitration, because both the player and the owner submit a single offer, or bid, and the panel chooses one or the other.

Player grievances outside of salary disputes are decided by the “Club’s representative” and may be appealed up to the Chairman of the three-member panel. The National Basketball Association (NBA) has what is called a “soft” salary cap, meaning that teams are generally permitted to exceed the salary cap and/or luxury tax without much consequence. Unrestricted free agents may sign with any team they choose, but restricted free agents are subject to limitations placed upon them by their current teams. To restrict players, team owners must establish their “right of first refusal” by making a qualifying offer. If the player accepts, he becomes an unrestricted free agent the following year. If the player refuses, other teams may extend an offer sheet with an amount exceeding the qualifying offer. The current team then has 7 days to match. Players who seek system arbitration sit before a single arbiter, jointly selected by the NBA and NBA PA. The aggrieved party may appeal to a three-person panel.

The National Football League (NFL) has what is called a “hard” salary cap, meaning that there are no exceptions to the cap and stiff penalties will be allocated to teams who exceed it. Like in the NBA, the NFL recognizes restricted and unrestricted free agents. However, the NFL also recognizes certain subcategories of free agents, including transitional and franchise players. Although somewhat more complicated, restricted and unrestricted free agency in the NFL works much like it does in the NBA. The transitional and franchise player aspects are essentially just methods of locking up players and preventing excess player mobility. Players who seek system arbitration sit before a single arbiter, jointly selected by the NFL and NFL PA. The aggrieved party may then appeal.

Collective bargaining has had a major effect on the competitive balance within each sport. In the MLB, for example, because there is not a salary cap and the free agency process is especially appealing to players, big market teams are generally the best teams year after year. The same holds true for the NBA, largely because of the “soft” salary cap. In the NFL, however, because of the “hard” salary cap and the free agency rules that allow teams to restrict player mobility, small market franchises are generally more capable of competing.

**All of my findings on collective bargaining are from the articles entitled (1) Beyond the Box Score: A Look at Collective Bargaining Agreements in Professional Sports and Their Effect on Competition, by Ryan T. Dryer, Missouri Law and (2) Collective Bargaining and the Professional Team Sport Industry by Cym H. Lowell, Duke Law**

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Thank you to Lee Christie for this interesting overview of collective bargaining in pro sports. Since the Sports, Torts & All Sorts CLE is what we call a Live In-Person Only Seminar, I can’t offer you the video replay, or even an epub. But I hope you’ll keep your eyes open for the next time a similar event makes our schedule. While your waiting for the next play, practice up with an On Demand offering in your arena of choice. Plus, right until Aug. 31, 2015 All On Demand Seminars are 50% Off. Use Coupon Code:  DX7Y9 

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About our Law Tips faculty participant:
Lee C. Christie is a partner with Cline Farrell Christie & Lee, PC; Indianapolis. His practice focuses on Trucking Collision cases, wrongful death and alternative dispute resolution. Lee is committed to maximizing tort recoveries for accident affected victims. He has extensive trial experience in both federal and state court and is a frequent lecturer on trial, mediation, personal injury, medical malpractice, trucking accidents, and settlement issues.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: Your Nursing Home Resident Client Could Use A Good Managing Partner

What do you do to promote quality care for the person under guardianship for whom you are responsible as guardian, once that person is in the facility? We often hear that, in dealing with a demented patient, you shouldn’t try to bring them to your reality because that’s a losing battle. Instead, we’re told, be with them in their reality. To some degree the same can be said for dealing with a nursing home; knowing that the reality is that there will be care problems in a nursing home, some avoidable and some not, how do we act as guardians within that reality?

I welcome H. Kennard Bennett and Robin Bandy, ICLEF faculty participants, who have wide experience in effective advocacy on behalf of the nursing home resident client. Their guidance for those acting as guardians includes being persuasive, curious and persistent, celebrating success and finding internal as well as external allies. Another effort that Robin and Ken recommend for the best outcome for the nursing home resident is good team management. Here’s that expert advice:

Defining Roles and Responsibilities – The Team Approach
As obvious as it may be to those of us serving in the guardianship role, the role of a guardian is not always understood by others, including nursing home staff. A guardian is not a health care provider. A guardian is not a discharge planner. A guardian is not just a “yes man” or someone who just signs consent forms, etc. A guardian is defined by the National Guardianship Association’s Standards of Practice as “A person or entity appointed by a court with the authority to make some or all personal decisions on behalf of an individual the court determines lacks capacity to make such decisions.”

A common way of thinking of guardians is as the “surrogate decision-maker” responsible for exercising “informed consent” on behalf of someone who has been deemed incapable of exercising such consent themselves. This model, however, is an insufficient one when it comes to guardians of a nursing home resident. We say “informed consent” meaning that the experts – the doctors or nurse – are providing us with information upon which we are asked to say “yes” or “no” -yes to that procedure, no to that drug, etc. But in the nursing home setting, where the person under guardianship shall be living, not just convalescing, the decisions to be made are not only with regard to medical or nursing procedures. They also involve the resident’s quality of life. What foods and activities do they enjoy? What were their living habits before moving to the nursing home? Were they “night owls”? Was lunch or dinner their biggest meal of the day? Briefs or boxers?

Many of these questions are incapable of being answered by the nursing home itself. They are questions the social worker in the nursing home will want answers to, perhaps, but the social worker may not know the questions to ask. All of which is to say that the guardian and the nursing home staff need to be a team to meet the needs of the resident. The guardian relies upon the nursing home employees to provide the care and services required, but the nursing home relies upon the guardian to provide not only consent, but is many ways resident history, guidance, and direction.

As between the nursing home staff and the guardian, which team analogy makes the most sense? Is the guardian the coach? I would argue not- a coach tells the players how to do their job, how to improve their skills, etc. That’s not the role a guardian must play; a guardian cannot be expected to have the expertise to tell nursing homes how to do their job. Is the guardian the CEO? This is perhaps a better analogy in that the CEO defines the outcomes she wants from the employee team, although this analogy comes across as too top-down and too egotistical.

Maybe the best analogy is that of “managing partner,” in that the guardian is keeping a “team of equals” on track in meeting the needs of the nursing home resident. The guardian still holds the team accountable to the team goals, but recognizes and respects the individual expertise of each of the team members. As with a managing partner so it is with guardians: the power of persuasion trumps the power of commandment when it comes to achieving the team’s mutual goals.

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Ms. Bandy and Mr. Bennett served as faculty for our popular Guardianships In Indiana CLE seminar. You have several options should you wish to learn more from this program. Click Here to select from these formats: Video Replay, OnDemand, electronic document, publication or CD-ROM. Thank you to these two outstanding faculty members for their continuing contributions.

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About our Law Tips faculty participants:
Robin J. Bandy, Associate Counsel and Director of the Volunteer Advocates Program at the Center for At Risk Elders (CARE). Prior to joining CARE Robin was the Program Manager at the Fairbanks Center for Medical Ethics at IU Health. Robin completed her law degree and master’s in bioethics at Indiana University-Indianapolis. She was the founding director of the Wishard Volunteer Advocates Program and has served as an ethics consultant at both IU Health and Eskenazi hospitals.

H. Kennard Bennett, Bennett & McClammer, LLP, Indianapolis. Before starting Bennett & McClammer, Ken had his own solo practice and he was a partner in the elder law firm of Severns & Bennett, serving as its President and CEO. He remains “of counsel” to what’s now known as Severns Associates. Ken has served as the Editor of the National Academy of Elder Law Attorneys Quarterly. He is a frequent continuing education speaker on nursing home litigation and elder law topics. Ken currently serves as President of the Indiana State Guardianship Association. He also serves as the President and CEO of a new non-profit public interest law firm known as The Center for At-Risk Elders, Inc. (“CARE”).

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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