What I wish to share here is something more positive.  It might not a miracle pill, but the more it’s studied, the more it does resemble something quite powerful.  As most mediators know, the process of mediation is unique in our current system of conflict resolution in that it aims at actually resolving conflict on a more holistic level by promoting increased understanding and paving the way for an ongoing ability to confront disputes in a less destructive and more productive manner.  Does this make mediation a magical elixir? Maybe, at least when it comes to family law disputes.  The more you look at the effects it has, the more you realize it’s not only one of the best deals out there to help you work your way through the disputes that arise in divorce, but it actually might benefit you for years to come in ways that you might not expect.

The Study

I’ve recently come across a striking study, one not altogether new, but not that publicized as far as I know, about the long-term effects that resulted from just one relatively short, 5-hour mediation, participated in by divorcing parents at the beginning of their divorce.  The study, lead by Robert E. Emery, PhD of the University of Virginia, showed startlingly strong and positive results to the ongoing parent-parent and parent-child relationship after parents participated in just a brief, but well-timed facilitative process of mediation.

The study worked with a group of families who had all filed for a contested custody hearing, who were all generally young and low income, and who all agreed to be randomly assigned by a coin-toss to either participate in mediation, or not, before continuing in the standard adversarial process of the legal system.  The families were studied for 12 years.  The half who flipped “heads” participated immediately in a 5-hour (on average) mediation that was facilitative, problem-focused and also sensitive to emotions.  (Note: this is opposed to the typically, solely evaluative “mediation” procedure done now more commonly in California courts – which could be another topic of its own for another rainy day.)

Results of the Study Re: Settlement Rates

For the group who tried mediation, over 80% of them successfully reached a voluntary mediated agreement at the conclusion of mediation.  Moreover, of the less than 20% who did not reach an agreement in mediation, half of them (50%) still settled out-of-court after mediation without the need to go through a court trial – which is generally the apex of the conflicted and most painful divorce battles.  This meant that only about 10% of the total “heads” group ended up needing to proceed to trial.  On the other hand, of those who did not mediate at all (the “tails” group), 75% of those families proceeded to trial, where a judge resolved their disputes for them.  Also, this non-mediating group’s settlement rate outside-of-court (between themselves and their attorneys, i.e., resolved short of going to trial) was only about 25%, unlike the group who tried mediation and failed to resolve it there, who resolved their dispute out-of-court at the rate of 50%.

So what does this mean?  For those who tried mediating their dispute, even briefly, there was a 90% as opposed to 25% chance of resolving their dispute either more amicably in mediation or at least without a court trial.  And even for those few parties who tried mediation and failed to resolve their dispute in the mediation, they were still twice as likely to settle among themselves or with the help of their attorneys before having to resort to a court trial.  Such pretrial settlements, whether in mediation or between parties and/or their attorneys, typically save enormous amounts of time, traumatizing stress and sometimes vast amounts money.

Results of the Study Re: Parental Assessments & Relationships with the Children

Another striking result was that 12 years later, among the group who mediated (regardless of their success in mediation), the custodial parent (i.e., the parent in each family who maintained the larger overall time with the children) on average “graded” the other parent significantly better in every category of parenting than the custodial parents in the non-mediating group.  (The categories of parenting included such areas as discipline, dress/grooming, religion/moral, errands, celebrating holidays, significant events, school/church, recreation, discussing problems and vacations.)  The parties that did not mediate gave grades generally below the 50^th percent mark, while parents who did mediate gave grades generally at or above the same midway mark.

As for the resulting effect on the actual visitation between the non-custodial parents (the parent having the lesser overall amount of time with the children) and their children, the study showed an interesting trend of increased involvement as compared to the group who did not mediate.  The study indicated that not only were parental assessments higher or more positive towards the non-custodial parents, but the amount of visitation between the non-custodial parents and their children as a whole also stayed routinely higher and did not decline at the end of the 12-year period, as tended to happen in national averages over the same period of time, and as tended be weighted towards less frequent visitation in the “tails” group who did not try mediation.

Similarly, but with an even more impressive disparity in results, the study showed that mediation had the effect of resulting in significantly increased regular phone calls between children and parents in each group.  It showed that the vast majority of the non-custodial parents in the “heads” group (the group who tried mediation) continued to have phone calls with their children at least weekly at the end of the 12-year period, contrasted with the vast majority of the “tails” group who’s non-custodial parents only had phone calls with their children once a year or less.

Conclusion

What this study highlights is the beneficial results that have come in a group of family custodial disputes, seemingly from the sole and random factor of simply having been assigned to participate in 5-hour average mediation, even a decade after the mediation.

Can the study be picked apart and could other factors be playing a part?  Of course, and this study certainly begs for ongoing and larger scale research to be implemented on the effects of mediation, but regardless of skepticism or critique, the indication is clear that mediation is a powerful process from which most parties benefit greatly– and for a much longer time than most other magic elixirs have claimed.  It seems that even briefly participating in a facilitative mediation early in the process can have long-lasting and profound effects on both the relationship between the parents themselves, and simultaneously on that of each parent with their own child. 

Is this to say that litigation is always bad? No – not necessarily; certainly sometimes it is the best option, but it should always be carefully utilized, with ongoing reflection on ensuring that it is appropriately serving the parties’ own goals and interests.  For anyone going through a divorce or separation, with or without children, or for those even considering separating, facilitative mediation with a knowledgeable mediator should always be considered – and the earlier the better.  The immediate and longstanding effects of participating in even a brief mediation are simply too positive to ignore.  There is little to nothing to lose, and a wealth of long lasting benefits to gain.

In that case, a New York State appellate court reinstated Mr. Simkin’s lawsuit (which the trial court had thrown out) against his ex-wife, Ms. Blank, seeking to force her to renegotiate their settlement agreement that they and their respective attorneys finalized back in 2006.  The case consisted of over 13 million dollars in assets to divide between the parties, who were both prominent attorneys in New York.  Despite the large amount of assets and the parties’ local prominence, the divorce was unexceptional.  What was unusual, however, is that nearly 2 ½ years passed before Mr. Simkin filed suit against his ex-wife (in 2008).  Final settlements like this are rarely reopened after such time.

So why is Mr. Simkin now being allowed to contest the settlement? Because of the Madoff funds at the center of it.  Mr. Simkin chose to keep the Madoff accounts that he and his wife jointly acquired during marriage, and to do this, he had to pay his wife the then-current value that they were worth.²  That was 2.7 million dollars.  Of course, 2 ½ years later they suddenly became worthless.

Now, Mr. Simkin is demanding that his ex-wife return the millions of dollars based on a contract law principal called “mutual mistake.”  His argument goes something like this: “your honor, there was no such ‘account’ because Madoff was running a ponzi scheme.  The Madoff ‘accounts’ were not what either of us believed them to be, and were in fact something quite different and unexpected, something that neither of us knew .  Therefore, we were both ‘mutually mistaken.’ ”

Is this really a case of “mutual mistake”?

“Mutual mistake” generally allows either party to a contract to void the contract when it can be shown that they were both mistaken about an identical basic assumption at the time the deal was made, and that such assumption materially affected the exchange.  For instance, “mutual mistake” has been perhaps most famously applied where a man sold a cow he believed to be barren, which made the cow far less valuable.  He found a buyer, and they negotiated a price based on the mutual understanding that the cow was barren.  Before the exchange, however, the cow was found to be pregnant.  The seller refused to sell, and when the buyer sued to enforce the sale, the buyer sought to void the sale and get his pregnant cow back.  The seller won because the court concluded that both the seller and the buyer were “mutually mistaken” about a basic assumption that materially affected the exchange, precisely the assumption that the cow was barren.

So how does this compare to Mr. Simkin’s and Ms. Blank’s case? In my opinion, it simply doesn’t.

Here, instead of relying on a mistaken belief, both Mr. Simkin and Ms. Blank clearly relied on the true then-current value of the Madoff funds.  There was no mistake as to the value – The value remained true until the scheme collapsed in 2008.  Before then, investors could in fact sell the funds back to Madoff’s firm for the stated value.

Mr. Simkin, however, is arguing that they both were mistaken about the nature of what the “accounts” actually consisted.  As we now know, the “accounts” were not as stated on the financial reports provided to investors.  Instead of purchasing stocks, investment funds and engaging in the complicated trades that Madoff told investors he was doing, he eventually admitted that since the start of the ponzi scheme (which he said was in the early 1990’s), he was not trading at all.  He was simply putting investors’ money into his own Chase Manhattan Bank business account, and paying investors out of this account when they wanted to take their money out.

However, given the nature of both divorce and of liquefiable assets, I don’t think Mr. Simkin’s argument flies.

First, it seems highly unlikely that Ms. Blank relied on any basic assumption about what particular funds the “accounts” actually consisted of when she let Mr. Simkin take them off her hands.  As a contractual matter, that is, the elements of “mutual mistake” just don’t seem to apply here.  As noted earlier, the mutual mistake doctrine does not apply if: 1) the parties’ mutual basic assumptions were not in fact “mistaken”; 2) the parties did not rely on any “identical” mistaken basic assumption; or 3) the mutually mistaken basic assumption had only an “immaterial” affect on the exchange.

Most significantly, unlike the cow case where both parties “mistakenly” thought that the cow was currently barren, here neither Mr. Simkin nor Ms. Blank was currently mistaken about the value of the Madoff funds.  The funds actually were valuable and liquifiable at the time the parties divorced.

Also, it is unlikely that the parties had any “identical” basic assumption about what the Madoff accounts actually consisted of, or, even if they did, that it “materially” affected the exchange.  The parties were divorcing and simply had to divide their assets.  Ms. Blank was selling her funds for the market price, and the only question was to who.  Even if Ms. Blank considered the nature of the specific accounts at all, it seems that such an assumption would have been immaterial to the ultimate exchange; her decision would most likely have been to simply to cash them out, period.

Second, not only do the “elemental” aspects of “mutual mistake” seem lacking, but equitably speaking, a decision forcing Ms. Blank to return the money seems wrought with peril for the nature of marriages and divorces as a whole.

In a divorce, where parties are generally expected to at least try to work towards settlement, and to avoid costly litigation and overburdening the courts, it would be quite unusual and rather uncooperative for Ms. Blank to obstruct the settlement by not selling Mr. Simkin the investment funds for the exact same value that she could have sold them back to Madoff’s firm.  I can even imagine some courts considering such a refusal by Ms. Blank to be sanctionable conduct.  Essentially, the question would be posed, “why would Ms. Blank, except in bad faith, obstruct a settlement by refusing to let Mr. Simkin take the asset she did not want for its current fair market value?”

In divorce proceedings, the gold standard used to divide assets is current fair market value.  And this is for good reason.  In dividing marital property, the parties are not freely engaging like two willing cow merchants in a contractual deal with each other.  They are dividing their assets between themselves because they have to; because one wants out of the marital relationship.  This is regardless of whether or not one spouse wants that.  And, if one party wants to sell his or her half of a marital asset, she has that right, and the other party can’t stop them – they can only choose whether they want to be the one to buy it.

Here, Ms. Blank had the absolute right to sell her half of the Madoff funds.  Ordering her to now repay Mr. Simkin because she simply chose to sell to him instead of Madoff, would completely change the right of a divorcing person to freely dispose of his or her share of marital property upon divorce.  It results in the marital obligations extending further than ever before, and preventing the parties from starting free lives of their own.  Allowing Mr. Simkin to recoup his losses from Ms. Blank essentially will be turn divorce on its head and make marriage more like a life sentence.  Undoubtedly, this would be an interesting social experiment, but it would be quite a major one, and one most family law practitioners (and probably many others) do not seem to stand behind.  For those who disagree, feel free to chime in and share your views by commenting below.

When going through a divorce or domestic dispute in court, your ability to directly access important information and to preserve critical evidence before it is lost or manipulated can alter the entire course of legal action in your favor.  However, gaining access illegally or invading your spouse’s right to privacy can also wind you up in jail, with your evidence stricken, with heavy sanctions imposed by the court, the loss of custody or visitation with your children, and/or slapped with up to a 5 year permanent domestic violence restraining order.

Knowing what is and is not permissible will supply you with the tools necessary to ensure that you: 1) don’t overstep your legal bounds; 2) are fully equipped to assiduously investigate and act swiftly to preserve important evidence; and 3) are poised to aggressively defend yourself from any such antics perpetrated by your spouse or domestic partner.

Hot Investigation Topics in Family Law

There are 4 hot investigatory areas important to be aware of today:

1. Installing GPS tracking devices on vehicles (or cell phones) to spy on your significant other or ex significant other.
2. Accessing “private” data stored on family or work computers (including emails).
3. Wiretapping, or secretly intercepting real-time communications (including keystroke logging).
4. Accessing and preserving data that has been stored for any length of time on your significant other’s cell phone.

This is the first part of a 4-part discussion covering each of the areas above.  This part deals with the first section – the use of GPS tracking devices in domestic disputes.

The GPS Tracking Device – Can You Lawfully Monitor Your Spouse’s/Partner’s Location?

Under Federal law and the 4th Amendment, it appears that GPS tracking devices won’t be allowed to be used by law enforcement officers without a warrant, at least where the use is over 24-hours, is beyond mere “discrete” and “short-term” use, or passes beyond public areas into traditionally “private” areas, or areas where one would reasonably expect privacy.  The issue of tracking with modern GPS devices has not yet been before the U.S. Supreme Court, but looking at the two most significant and on point federal cases on this issue -U.S. v. Knotts (1983) 460 U.S. 276 and U.S. v. Maynard (D.C. Cir. 2010) 615 F. 3rd 544 – it seems unlikely to be permitted without a warrant and/or substantial limitations to protect privacy rights.  The rules and rights in the private arena, and what’s legislated by States in that regard, cannot ignore these privacy rights where sufficient similarities exist.

In California, the State Legislature has enacted law that makes it a misdemeanor for any person in the State to “use an electronic tracking device to determine the location or movement” of another person unless “the registered owner, lessor or lessee of the vehicle has consented to the use with respect to that vehicle.”  Cal. Penal Code section 637.7.

What this means in the family law and domestic dispute context is that spouses or partners who are both registered owners of a vehicle may, unbeknownst to the other (or to anyone else in their car, for that matter), track the location of that vehicle and the persons in that vehicle after surreptitiously installing a GPS device.  Note however, that the statute does not spell such an exception out, or any one like it, if the GPS device is attached to any other movable object except a vehicle.

Even with this limited right to attach a GPS device to a car that you are registered to own, there are still two significant warnings and limitations of which to be aware.  First, the tracking must be limited to public places - this being one of the key factors in the federal case decisions noted above.   In other words, the tracking may not be used to track persons or the vehicle through private property such as large ranches, private corporate facilities or other areas not open to the general public.

Second, it cannot be used as a means to instill fear in the persons traveling in the vehicle.  There are numerous cases in States across the Nation that found the use of GPS tracking devices to be evidence of criminal stalking and/or domestic violence. Unfortunately, this illegal use is often what prompts people to purchase and install GPS tracking devices.  As a result, if you do use a GPS tracking device, you should anticipate and be prepared to respond to courts and other parties who suspect you to be acting with an unlawful intent, and needlessly harasssing the other party.

It is also important to note, however, that the “stalking” cases all included more evidence of other harassing behavior taking place than the mere passive receipt of GPS information.  Keeping that risk in mind, however, it should be an immediate red flag to you that using a GPS tracking device is probably not appropriate if there is any evidence or likelihood of there being accompanying threats made, harassment, a history of domestic violence, or the presence of a current restraining or protective order.  In such a case, significant safeguards, including taking the actual act of the monitoring away from yourself (the registered owner of the vehicle) or any other interested parties would be wise, to say the least.

I Think I Want to Monitor My Spouse/Partner – Now What?

If you or your client think it would be beneficial to secretly install a GPS tracking device on a vehicle to monitor a significant (or ex-significant) other’s location, consider taking the following precautions and using them as a checklist:

• First, it is fundamentally vital that you first confirm that you (or your client) is in fact a registered owner of the vehicle.
• Second, determine exactly what evidence or information you are seeking to obtain, and then consider whether that evidence or information is relevant and significant enough under the laws of California to justify the risk involved.  Consult with an attorney about this first, and only do it with their guidance and oversight.  Keep in mind, also, that although you may technically be “allowed” to use the device, a judge still has discretion to allow the evidence to be used.  Thus, it certainly would not be in your benefit to take this risk, for example, if your particular judge (or court) is known to consistently strike such evidence.
• Third, protect yourself (or your client) against allegations of stalking and/or harassment.  If you are the registered owner of the vehicle, avoid having immediate or real-time access to any of the GPS related information about the location of the vehicle.  The more the registered owner is distanced from actively monitoring the vehicle’s location, the less likely it is for the monitoring to be deemed an act of stalking.
• Fourth, if you decide to secretly install a GPS tracking device after first carefully considering the above, and, hopefully, after working with an attorney, you (or your client) should not tell or intimate to the other person that they are being monitored in any way.  Telling or hinting to the other party that you know where they were and are monitoring them has often been seen as an attempt to intimidate, frighten and harass them.
• Fifth, design and implement a plan to ensure that you cease monitoring (or can cease monitoring) the person/vehicle while the vehicle is inside a private location.  You should also have a way to protect any such logging information that you receive as confidential, and you should not review any such tracking information collected while the person/vehicle is in a private place.
• Finally, be prepared to present the evidence (whether to the court, to any other fact finder or the other party) as clearly relevant to the case, and as having been carefully procured.  In other words, be prepared to testify to the the care that you (or your client) took to avoid invading anyone’s privacy, and to clearly present the law (Cal. Penal Code section 637.7) and demonstrate that you complied with it, had no foul intent, and that use of the device was never harmful or threatening to the monitored person(s).

According to the USDA, the total cost of raising a child born in 2009 to age 17 is between $205,960 and $475,680, adjusted for inflation.  Those figures are based on averages that were broken down for three income brackets – lowest, middle and high – with the average expected cost for each being (respectively) $205,960, $286,050 and $475,680.

If you want to estimate the costs based on your own situation, there is also a handy calculator that’s been devised to help you gauge what you will likely spend for your children, based on such individualized factors as how many children you have, how old they are, whether you are raising them with a partner, what your income level is and in what area of the country you live.

And regardless of what the actual costs end up being, there are also some interesting trends and conclusions that the study found:

The most expensive aspect of raising a child over the course of their life (to age 17, and averaged across income levels) is providing for their housing, which averages 31% of the total.  Second to that is providing child care and educating them at 17%, then feeding them, at 16%.  These three categories are followed by costs of transportation at 13%, various miscellaneous expenses at 9%, healthcare expenses at 8% and clothing coming in last at 6%.  One difference in the low income households, versus both the middle and highest, was that the cost of food rose to the second highest expense category, above childcare/education.  The explanation attributed to this was that lower income households found free or much lower cost childcare from family members or friends.

In a two parent household, if you have one child, the average percentage of all household expenses that is directed towards raising that child is 27%, while if there are two children, the average grows less than proportionately to 41%, and with three children the average rises even less proportionately, and just a few points higher to 48%.  (The figures for single parent households is generally slightly less overall, since there tends to be slightly less money to spend on children as a whole, but the trends are otherwise similar, with parents spending only slightly more with each addition to their family.)

The cost of raising children tends to increase as they get older, growing from an average of $11,700 per year at the youngest age (0 to 2) to $13,530 per year at the oldest ages (15 to 17).  These are the averages for a middle income family, but the same trends were repeated in all income groups.  Generally, the cost of food is what rose the most as children aged (presumably because of their growing appetites), and transportation costs also rose slightly, which was believed to be related to the costs of children starting to drive.  The cost of education/childcare, however, decreased after age 6 (mostly as attributed to the childcare cost).

As expected, the cost of raising kids also varied based on geography.  This was found to be primarily related to the directly correlating higher cost of both housing and of childcare and education in the urban Northeast, followed by the urban West, urban Midwest, urban South and then rural areas.  Transportation costs, however, related to raising children was highest in the urban West and rural areas.

The study did not include costs of pre-natal healthcare, higher education or any costs after age 17, or governmental expenditures for children.

One final interesting comparison was that of the change in child rearing expenditures from 1960, when the USDA first collected these numbers, to its latest figures in 2009.  The average expense then, in 1960 (using the average figures for middle income families with two parents) amounted to $25,229, or $182,857 in 2009 dollars compared to the 2009 figure of $222,360 – almost $40,000 more or 22% higher, even after adjusting for inflation.  The costs that have increased the most have been childcare/education from 2% to 17% (probably related to the fact that there are less stay-at-home parents today), and healthcare doubled from 4% to 8%.  Housing has always been the largest category at about 31%, with no actual relative change, while the categories that have decreased in relative size have been food (24% to 16%), transportation (16% to 13%), clothing which nearly shrank in half (11% to 6%) and miscellaneous items (12% to 9%).  These expenses are believed to have decreased in relation to the whole due in part to technology, production and agricultural efficiency and globalization.

This study is completed annually for the purpose of assisting governmental agencies, legislatures and other interested entities or individuals to develop updated State child support guidelines, foster care payments and family education programs.  Whether you find it accurate or not, disagree with it or not, or just wish that other parent of your child would help out more financially, or really spent that much of the support money on your kid(s), now you have some figures to pick apart during those sleepless, financially stressful nights, or while waiting in court, or simply waiting for your kids while they grow up  happily and healthily ignorant of how much they are likely costing you.