Author Archives: Gary P. Shaffer

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About Gary P. Shaffer

Gary P. Shaffer is an attorney & mediator at Shaffer Mediation in Brooklyn, New York.
EMAIL: gary@shaffermediation.com
BIO: About Gary
PHONE: 347-314-2163

Family Disputes: Selling The Family Home
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Authored by , re: Family & Divorce, LAW RELATED ARTICLES, on .
Family Disputes: Selling The Family Home | Gary Shaffer

{3:54 minutes to read} Our mental attics can store lots of emotional content when it comes to a family home. For many families, selling that home may be sad, but not otherwise a source of contention. It can even be a relief. But for others, selling the home can create conflict. While there can be an almost infinite source of such conflicts, mediation can provide a way to ease or even resolve them. Money and emotion are almost always intertwined in a dispute over the family home, and any attempt at resolution must address both. Ideally, the issue is addressed before a dispute arises...

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Mediating Family Business Disputes
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Authored by , re: Business Law, LAW RELATED ARTICLES, MEDIATION, on .
Mediating Family Business Disputes | Gary Shaffer

{3:42 minutes to read} In my previous blog post on this topic, I described some of the general issues that arise during a mediation involving an intra-family commercial dispute. These included:

  • Resentments built up slowly over time;
  • Allies and enemies;
  • Divergent recollections; and
  • Emerging “alternate truths.”
The first reported case involving these kinds of matters goes back a long way. It’s found in the book of Genesis, in the paradigmatic dysfunctional family story of Isaac, Rebecca, Jacob, and Esau.

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Intra-Family Commercial Mediation: Get Back At Or Get Back Together?
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Authored by , re: Family & Divorce, LAW RELATED ARTICLES, on .
Intra-Family Commercial Mediation: Get Back At Or Get Back Together? | Gary Shaffer

{2.54 minutes to read} All happy families may be alike, but all families with intra-family disputes involving money are unhappy in their own way. Resentments build up slowly over time, people develop allies and enemies, recollections diverge, and “alternate truths” emerge. Each family has its own unique set of alternate truths that must, at a minimum, be recognized for a mediation to be successful. The goal of an intra-family mediation is not to get family members to agree on a single truth. This may be emotionally impossible, and recollections can be fuzzy and subject to interpretation. Words can be stated in many different ways and with different intent. What was meant one way may have been taken in another. 5, 10, or 15 years later, the recordings are lost. And to some extent they may be irrelevant.

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Co-Mediation: Does it Make Sense?
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Authored by , re: Family & Divorce, LAW RELATED ARTICLES, MEDIATION, on .
Co-Mediation: Does it Make Sense? | Gary Shaffer

{3:18 minutes to read} Mediations come in different flavors. Most typical is a single mediator who meets with the parties and includes joint as well as individual sessions. Co-mediation is sometimes used in divorce or family matters, usually with a male and female mediator working with a male and female couple. The thought is that such an arrangement will lessen the possibility or the perception of gender bias. Experienced mediators are careful to avoid any bias as best they can or are at least able to pick up when a particular spouse/partner is sensing some bias.

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Getting Divorced but Living Together?
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Getting Divorced but Living Together? | Gary Shaffer

{3:54 minutes to read} When most people get divorced the last thing they want to do is continue living together in the same house. One of the prime reasons to get divorced is so you no longer have to live with that crackpot, jerk, cheat, ne’er-do-well, a liar, energy-sucker. When there are no kids, this is usually an easy decision. Hasta la vista, baby. But life isn’t always neat, and when there are children and limited resources, keeping the family home may be the best way to harness those resources and maintain stability.

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Bottom Lines: Don’t Reveal, But Do Discuss
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Authored by , re: Business Law, LAW RELATED ARTICLES, MEDIATION, on .
Bottom Lines: Don’t Reveal, But Do Discuss | Gary Shaffer

{3:54 minutes to read} In my last blog I discussed why you should not reveal your bottom line during a mediation. You can read that here. My teaser line at the end was that it’s important for attorneys and clients to discuss bottom lines. And that discussion may have to occur several times. Parties generally enter a mediation with very different ideas as to what a case is worth or what it should settle for. The plaintiff thinks the defendant should take out the checkbook and be prepared to write a check with lots of zeros. The defendant thinks that any check should contain only zeros.

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Commercial Mediation: What’s Your Bottom Line?
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Authored by , re: Business Law, LAW RELATED ARTICLES, on .
Commercial Mediation: What’s Your Bottom Line? | Gary Shaffer

{3:06 minutes to read} When, if ever, do you let a mediator know your bottom line? There are three answers to this question:

  1. Never.
  2. When you say, “Okay, we can settle for that.”
  3. When it’s 6:30 p.m., and you (or your attorney or your client) have a 7:30 train to make. You know you’re pretty close to an agreement, and walking away now is painful given the time and money you’ve spent at the mediation. You don’t want to leave with the case unresolved, especially since you’ll have to wake up in the morning, and probably for quite a while, with the case still around.

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Mediation: Post-Nup as Marriage Counseling and Marriage Preservation
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Authored by , re: Family & Divorce, on .
Mediation: Post-Nup as Marriage Counseling and Marriage Preservation | Gary P. Shaffer

{4:12 minutes to read} Sometimes couples who come to mediation are unsure if they really want to get divorced. They may not even know they are unsure. There are all sorts of reasons for people in a rocky relationship to stay together. The two that stand out are kids and financial resources. Even for well-off couples, the cost of post-divorce life is often surprising.

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Easier Said Than Done
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Easier Said Than Done | Gary Shaffer

{2:54 minutes to read} I recently came across an Employee Handbook for a large metropolitan hospital. The handbook is relatively short, only 24 pages. It gives all sorts of information about benefits, professional development, direct deposit of paychecks, equal opportunity, employee health services, etc. There is also a brief, two-paragraph section on Grievance Procedures, where it says:

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Appellate Mediations – Part 2
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Appellate Mediations – Part 2 | Gary P. Shaffer

{3:30 minutes to read} In my last blog, I discussed why mediating a case on appeal often makes sense, even to the party that has won Round 1. This time I want to focus on the potential risks and benefits that winners and losers face in the appeal process and how that affects their willingness to mediate. Losers If you lose on appeal, you really lose, and perhaps with greater consequences.  If a lower court decision is upheld, the loser may be living with the consequences for years to come. However, mediating the case before there is a decision on the appeal makes it possible to modify the trial court result. This can include a reduction in any damages, or an increase in damages, or designing a resolution where the outcome is more secure, slightly less onerous, and works in the long run.

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Mediate an Appeal? Wait, Didn’t Someone Already Win?
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Authored by , re: Family & Divorce, on .
Mediate an Appeal? Wait, Didn’t Someone Already Win? | Gary P. Shaffer

{3:12 minutes to read} One might think that mediating cases on appeal would be a losing proposition. After all, someone has already won. What’s the motivation for the winner to mediate? Oftentimes, plenty. Cases on appeal arise in many different contexts: after a full trial, after a successful summary judgment motion or motion to dismiss, even, occasionally, on a discovery matter. The winning party typically has the upper hand. But this is usually only one aspect of the mediation. It turns out that parties who have won the first round are often still interested in resolving a matter, and mediation may be the easiest and most efficient way to do it.

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Caucus Part 2
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Authored by , re: Family & Divorce, KNOWLEDGE NUGGETS, on .
Caucus Part 2 | Gary P. Shaffer

{4:06 minutes to read} My last blog addressed caucusing basics. I thought it might be interesting to expand the topic a bit to include some variations. As I previously wrote, non-divorce mediations are largely conducted through caucusing, with the mediator speaking to each side separately for much of the mediation. Divorce mediations typically are not conducted in this manner. But these are generalities; there is no one-size-fits-all.

  1. Counsel-to-Counsel Caucus (aka Get Those Clients Outta Here!)
Sometimes it can be useful to send the attorneys on a walk without the intrusion of the mediator or the parties. Counsel may have a prior relationship that enables them to talk outside the hearing of their clients, in a way that permits cutting through some of the formalities or concerns they would have if clients were present. I have successfully used this approach even when the lawyers did not previously know each other, but developed a rapport during the course of the mediation.

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Caucusing Part 1
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Authored by , re: Family & Divorce, on .
Caucusing Part 1 | Gary P. Shaffer

{3:36 minutes to read} Caucusing – speaking to parties separately outside the presence of each other – is a standard part of most mediations. It is essential in just about every commercial, employment, or personal injury matter. Parties often feel free to say things to the mediator that they do not want to say to the other side. And the mediator can say things to parties and their attorneys that could not be said in a joint session. It also allows the mediator to develop a strategy to help bring the parties positions closer together.

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Mediation Timing Part 2 – Commercial, Corporate, Employment
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Authored by , re: Miscellaneous, on .

{4:00 minutes to read} In my last blog about timing and mediation, I suggested that in divorce matters, there is a sweet spot of around 90-100 minutes for any single session. You can read that blog here: Part 1. This framework is largely irrelevant to other types of cases, such as:

  • Commercial
  • Corporate
  • Employment
  • Personal injury

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Mediation Timing Part 1 – Divorce Mediation
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Mediation Timing Part 1 Divorce Mediation | Gary Shaffer

{3:30 minutes to read} What’s the right amount of time for a mediation? As Goldilocks might put it:

  • What’s too much
  • What’s too little
  • What’s just right?
As in many such matters, it depends. Some parties fade quickly, others are happy to go on for hours and hours, days and days. What works differs from case to case. In divorce matters, I find that 90-100 minutes is the usual sweet spot for an individual session. It often takes a couple 45 minutes to really get going.

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Overcoming Resistance Part 2
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Authored by , re: Family & Divorce, LAW RELATED ARTICLES, on .

{Time to read: 3 1/2 minutes}  During every mediation I try to establish a personal relationship with the parties and the attorneys. No, we don’t go out for drinks together. But I want to know more about the people other than the dispute that brought them before me. Often I ask simple questions. These may differ depending on the nature of the case. All mediations – employment, divorce, commercial, personal injury – provide opportunities for talking about more than just what’s in a complaint:

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Overcoming Resistance
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Authored by , re: Family & Divorce, LAW RELATED ARTICLES, on .
Overcoming Resistance | Gary P. Shaffer

Resistance to mediation comes in many forms. There can be resistance to the entire process.

From attorneys:

Until relatively recently, many attorneys would not have participated in mediations in a meaningful way. They thought it would lead to a competitive disadvantage by forcing them to put their cards on the table prematurely. Sometimes lawyers have seen mediation as interfering with their income: the more a case goes on, the more I make.

From the parties:

  • What, sit in the same room with that person? That’s one of the reasons I hired a lawyer.”
  • They screwed me, I don’t want to talk to them. I want to screw them back. I want to get what I deserve.”

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Should Mediation Be Mandatory? – Part 2
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Should Mediation Be Mandatory? – Part 2 | Gary P. Shaffer

In my last blog I asked the question, “Is Mandatory Mediation an Oxymoron?” From the responses I received, it seems clear it is not.

There are all sorts of reasons to require mediation, the most important being that experience shows it works. Once parties are in the room they typically participate in good faith, whether they showed up through mutual agreement or external requirement. And the statistics show little difference in success rates between compulsory and voluntary programs.

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Should Mediation Be Mandatory?
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Authored by , re: Family & Divorce, LAW RELATED ARTICLES, on .
Should Mediation Be Mandatory? | Gary P. Shaffer

Jurisdictions throughout the country are increasingly establishing mandatory mediation programs. At first glance, “mandatory mediation” would seem to be an oxymoron to the mediation community where “self-determination” is a fundamental tenet of theory and practice, trumpeted for years as one of mediation’s highest goals.

Is forcing people into mediation contrary to a fundamental underpinning of the field and therefore doomed to failure? If it is, why are more and more jurisdictions adopting mandatory mediation programs? And, most importantly, does mandating mediation work?

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Anger as a Pathway to Resolution in Commercial Cases
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Anger as a Pathway to Resolution in Commercial Cases | Gary P. Shaffer

In my last blog I introduced the subject of anger at a mediation. Many people tend to associate anger and mediation with snarling divorcing couples, arguing over who is right and who is wrong.

While this certainly happens, anger can be just as profound in commercial cases where parties may feel equally wronged by each other. This can present the mediator with a quandary:

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Anger as a Pathway to Resolution, Part I
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Anger as a Pathway to Resolution, Part I | Gary P. Shaffer

There are very few emotions as destructive as anger. Shootings, murders, rapes, spouse and child abuse, intra-family squabbles (big and small), road rage, divorce, gang violence, are all fueled in part by anger. Anger is usually an aspect of any litigation, although even mediators must acknowledge that litigation as a dispute resolution mechanism is light years ahead of violence.

Anger and violence go back a long way. Whether we take the Bible as historical truth or a fundamental mythos of our collective Western unconscious, the first act of violence is primeval:

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Is Divorce Mediation Always Successful?
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Is Divorce Mediation Always Successful? | Gary P. Shaffer

It is fairly well accepted that divorce mediation is a far better way to handle the details of unwinding a marriage than litigation.  If there are any assets and any kids, the parties typically know the details of both, and with proper guidance are capable of figuring out how best to proceed so that the kids and assets are dealt with fairly and everyone can move on to leading happy and productive lives.

Divorce mediation deals with difficult and painful issues, but couples are remarkably capable of addressing their personal and family needs as the mediation progresses.

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Is Mediation Always Successful?
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Is Mediation Always Successful? | Gary P. Shaffer

Well, pretty much.  But first, let me backtrack.

What is meant by success?

- If it means that a resolution is achieved either during a mediation session or within a reasonable time thereafter, then in fact most mediations are successful.

- If it means that even if a resolution is not achieved within that framework, but the parties finish the mediation with a better idea of each other’s case – and their own – and therefore can proceed to a faster and cheaper resolution, then almost all mediations are successful.

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