Structure of Mediation

If you can persuade the adversaries in a difficult dispute to agree on the structure for mediating the dispute, you may be able to avoid having to pay thousands of dollars in legal fees to resolve the same issues by litigation. As stated, the structure of the mediation is critical.

                                                                                                                       

The parties must agree on a Chair/Moderator/Facilitator who will chair the discussion(s) and

1. Obtain the express agreement of all of the participants to comply with a mutually acceptable set of Behavioral Rules for a Successful Discussion (See the checklist below) established by the Facilitator and the participants. These must be finalized before any discussions begin and everyone must agree that the Facilitator has the absolute authority to manage the discussion and apply the Rules;

2. Help to identify the ultimate common goal(s) of the parties; For example, “To determine whether or not the parties are willing to work together to resolve any legitimate issues between them that would prevent going forward with the construction and sale of the subject property”.

3. Identify the issue(s) that each party wishes to discuss and the method for determining the order in which each issue will be taken up, and

4. Manage the discussion of each issue to ensure that:
1. the participants comply with the adopted Rules, and
2. the discussions focus on one issue at a time in the order agreed, and
3. the discussions move along as quickly and courteously as possible, and
4. no one filibusters or repeats arguments.

Sample checklist of Behavioral Rules for Successful Discussions:

1. No raised voices.
2. No profanity, curse words, etc.
3. No threats.
4. No disparaging, insulting, demeaning remarks or accusations.
5. Always speak and act in a courteous and professional manner toward everyone.
6. Let go of the past; let go of blaming; begin the discussions with a new, clean sheet of paper.
7. Really listen to the person who is speaking and don’t interrupt the speaker.
8. Ask questions to make sure that you understand what the speaker is saying and his/her point of view.
9. Whether speaking or listening, try to distinguish facts from beliefs, conclusions, feelings and perceptions that may not be supported by facts.
10. Try to discuss facts that can be independently established as correct or incorrect.
11. Eliminate adverbs and avoid adjectives that send meta-messages.
12. Beware of non-verbal communications: raised voice; intensity; tone; inflection; body language; facial expression.
13. Most important of all, give everyone a full and fair opportunity to be completely heard with respect to all aspects of their concerns, issues, positions, points of view, etc.

If adversaries are willing to discuss their differences courteously and in good faith, in the manner described above, there should be few disputes that could not be resolved without litigation.  

  

 - Beau Brincefield

What is Probate?

Probate is the official proving and recording of a will as the authentic and valid last will and testament of the deceased.  The will should be probated where the decedent (deceased individual) resided at the time of his or her death.  If the decedent passed away in a nursing home or similar institution, then the individual’s residence would be where he or she resided before the nursing home. 

Probate is necessary when the decedent has solely-held assets, which are assets that were not jointly owned or already designated to a beneficiary.  Assets involved in probate include real property and personal property such as bank accounts, cars, stocks and bonds, and personal belongings.  Life insurance and retirement accounts are usually not included in probate because they have named beneficiaries.

            What to bring to the Probate appointment at the Courthouse:

·         The original Will;

·         A certified copy of the death certificate;

·         If the Will is self-proving, you do not need to bring the witnesses to the Will or depositions of the witnesses;

·         The approximate dollar value of the solely owned assets for both personal property (stocks, bonds, bank accounts, automobiles, etc.) and the fair market value of real estate located in Virginia which must pass through probate;

·         The names, ages, and addresses of the heirs at law.  The heirs at law are not necessarily the beneficiaries of the Will.  Heirs at law are determined by kinship to the deceased;

·         Cash or check to pay fees.  Visa and Mastercard are also accepted.  There is a processing fee for each credit card transaction;

·         Valid photo identification.

      Do you need an attorney?  Not necessarily, but you should talk to an attorney about your particular situation.  You may need just a small amount of legal assistance or you may need a significant amount of  legal assistance.  It’s also possible you may be able to handle probate entirely on your own, but by first talking with any of the RRBMDK attorneys that handle will and estate matters, you’ll be able to make an informed decision about your probate legal needs.

Mediation and Custody

Contested custody cases often have a negative impact on the children who are at the heart of the matter.  While parents may have good intentions, the children often get caught in the middle as the parents attempt to work out custody and visitation schedules.

Mediation is often an effective form of resolving custody disputes.  The typical goals in mediation include creating a settlement that is in the best interest of the children, creating a parenting plan that allows both parties significant time with the children, and working toward a more cost-effective resolution—both money-wise and emotionally.

 

There are three types of mediation often utilized in custody matters:  facilitative, evaluative, and transformative.

a. Facilitative mediation.  In facilitative mediation, the mediator does not typically give his own opinions as to potential outcomes if the parties litigate.  The mediator facilitates the process through asking questions, pointing out common interests and points of view, and assisting the parties in analyzing options.  The parties are in control of reaching a resolution.  Typically, the mediator meets for joint sessions with both parties and without attorneys as they want the parties to form their own agreements without the influence of others, including the attorneys. 

b.  Evaluative mediation.  The evaluative mediation process utilizes a mediator who is usually also experienced with the litigation model of resolving custody cases.  The evaluative mediator, who is often a retired judge, helps the parties resolve the custody case by pointing out weaknesses in each party’s case and making predictions as to what a judge may or may not do.  Evaluative mediation is based on the standard set by the law.    Most often, the parties and their attorneys meet together with the mediator.

   

c.  Transformative mediation.  Transformative mediation is the newest of the three mediation forms.  The concept of transformative mediation is based on empowering each of the parties in the decision making process and teaching each party to recognize the needs, interests, values, and points of view of the other party.  The potential for each party to “transform” in his or her relationship with the other party provides an opportunity for the parties to not only resolve the current custody dispute but to hopefully learn a process of dispute resolution they can effect moving forward.  Transformative mediators meet with the parties together.  Transformative mediation is also the form used in the collaborative law process. 

There are pros and cons to each type of mediation.  Feel free to contact one of our attorneys at RRBMDK if you would like additional information on utilizing mediation in custody or divorce cases.  

Attorney’s Fees – The Oft Neglected but Crucial Provision

On the issue of attorney’s fees, Virginia and many other states subscribe to what is known as the “American Rule.”  The “rule” states that all parties to a lawsuit will be responsible for their own attorney’s fees regardless of who “wins” unless a contractual provision or statute provides otherwise.  Even so, it is often surprising how many contracts fail to include any terms regarding the ability to recover reasonable attorney’s fees in the event that a party needs to sue for breach of the contract.  When negotiating terms, parties routinely fail to consider the costs associated with initiating or defending a lawsuit arising from the contract.  These costs, including but not limited to attorney’s fees, are significant.  In some cases, these costs can even exceed the actual damages incurred as a result of the breach.  In that instance, the wronged party can never be “made whole” because he or she has had to absorb the costs of the lawsuit.  This result can easily be avoided if the contract provides for the ability of a prevailing party in a suit for breach to collect attorney’s fees. 

Attorney’s fees provisions can also benefit the parties by discouraging litigation in some circumstances, or reducing the time before settlement of litigation in others.  The provision should deter a party from filing any lawsuit that is not a) necessary and b) well-founded, due to the risk that he or she will be ordered to cover the opposing party’s fees if the suit is not successful.  The same risk encourages parties to enter into negotiations and reach a resolution before incurring substantial fees.  Although an attorney’s fee provision is a necessary and far reaching provision, it terms are relatively straight forward and simple.  When entering into negotiations regarding the language and terms of a contract, or before drafting even the simplest agreement of your own, it is always in your best interest to consult an attorney to ensure that the ability to recover reasonable attorney’s fees is provided clearly and in accordance with the law of the jurisdiction that will be used to interpret the contract in the case of an alleged breach.  While many people believe that they only need an attorney once a problem arises, it is only by consulting an attorney prior to the execution of the contract that you can ensure you are protected before it’s too late.  RRBMDK attorneys are experienced in drafting and reviewing contracts/agreements arising in various areas of law – from Real Estate to Family Law, Employment to Corporate Organization, and want to urge anyone considering entering into a written contract to call upon us for a thorough document review, and to answer any questions related to that ever-present “fine print.”  

RRBMDK Expands With the Addition of Three New Attorneys

RRBMDK recently added three additional attorneys to our firm. They bring a wealth of experience for our clients.

Tom Urban attended the Naval Academy and Texas A&M, with distinction, expecting to pursue a career as an aeronautical engineer. He participated in one of NASA’s early research projects dealing with a manned mission to Mars. Choosing to attend law school instead of pursuing aeronautical engineering, Tom graduated from the Georgetown University Law Center, convinced that his future looked brighter here, on earth, as an associate at Williams and Connolly rather than a life among the stars.  Tom now has more than 20 years as a trial attorney handling a wide variety of complex civil and criminal cases all over the country including RICO, antitrust, employment discrimination and whistleblower claims, white collar crimes, class actions, securities law, toxic torts, corporate fraud, banking law and financial services litigation.

Elizabeth “Liz” Csoka-Bubacz  brings to the firm a solid background in real estate transactions. Having formed and managed her own real estate settlement company, she is familiar with all aspects of real estate settlements, including financing and title insurance. She has litigated a wide variety of real estate and other claims, both in bench trials in General District Courts and jury trials in Circuit Courts, including claims involving RESPA and TILA violations, wrongful foreclosures and landlord/tenant disputes. She has also advised and represented many clients in connection with short sales, foreclosures and deficiency judgments. Liz has shared her expertise through seminars and courses dealing with Fair Housing Regulations, Ethics, and home inspections.

Mark Sullivan is our most recent addition. Before joining us, he served in the Fairfax Commonwealth’s Attorney’s Office for eight years, prosecuting all types of criminal misdemeanor and felony cases. Prior to that, Mark spent seven years in private practice dealing with all aspects of negotiating commercial contracts and complex litigation, including construction and leasing issues, intellectual property rights, and employment law.

We are delighted to welcome Tom, Liz and Mark to the firm. They not only deepen our bench in areas in which we already practice — real estate, complex civil litigation and criminal defense --but they also free up time for our attorneys who concentrate on other areas of our practice — corporate and business transactions, employment law, land use, wills, trusts and estates, civil rights and family law.

Contact us if you think that we can be of any assistance to you, your family, your friends and acquaintances (we are growing and always appreciate referrals) in any of the areas in which we practice. Even if we can’t help you with a particular legal matter, we will do our best to refer you to a well-qualified lawyer who can help you.

Underage Drinking: What To Do When The Party's Over

It’s that time of the year again when Prom, “Senior Skip Day,” Graduation and Beach Week all lead to one thing:  Underage Drinking.  So, what should you do when you get that dreaded phone call or knock on the door and your teen has been arrested?  Protect his rights.  Protect her future.  Calling an attorney is not about “getting your kid out of it,” it’s about making sure that a foolish mistake doesn’t cause long-term damage.

Most people know that purchasing, possessing or drinking alcohol when under 21 years of age is a crime, with a few exceptions.[1]  Underage drinking is formally charged as Underage Possession of Alcohol.  If your teen is 18 years or older, this is a misdemeanor criminal offense that carries a maximum punishment of 12 months in jail and/or a $2,500 fine, as well as a 6- to 12-month suspension of the right to operate a motor vehicle.[2]  The case will proceed through the General District Court for final disposition. 

If your teen is under 18, the case will proceed through the juvenile justice system.  Purchasing, possessing or drinking alcohol is considered a “delinquent act,” not a crime.  Not all juvenile arrests for underage drinking result in court proceedings, but if the case does proceed to court in Virginia, it will be handled by the Juvenile and Domestic Relations District Court.  If the Judge determines that the facts are sufficient to justify a finding of underage drinking, the court must deny driving privileges for at least 6 months or deny the child's ability to apply for a driver's license for six months following the date she reaches the age of 16 and three months.  Other potential dispositions include, but are not limited to, mandatory attendance and completion of law-related or substance abuse educational or rehabilitative programs, community service, “house arrest, ” probation, or fines. 

Whether your teen is under 18 years old or not, the Commonwealth must prove its case in court.  Never assume the case is a ”slam dunk” for the prosecution, at any stage.   Your teen cannot be found guilty by association--merely being at a party is not a basis to convict.   Your teen typically cannot be found guilty merely because the officer detects the odor of alcohol.   Your teen has rights, including the right not to answer questions and to refuse a breath test at the scene.  If challenged, the prosecutor must prove your teen’s rights have not been violated or face a potential dismissal of the case.

A “finding of delinquency” or a criminal conviction has collateral consequences you might not think of or know about.  If you find yourself in this situation in the coming weeks of parties – or at any time – the attorneys of RRBMDK can help.

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[1] For example, underage consumption of alcohol in Virginia is allowed in private, residential homes as long as the underage person is accompanied by the physical presence of a parent, legal guardian, or spouse who is at least 21.  Va. Code § 4.1-200.

[2] Public Intoxication is also a misdemeanor, but the maximum penalty is a $250 fine (and a 6-month license suspension if your teen is under 18).  Va. Code §§ 16.1-278.9, 18.2-388.

Real Estate Contract Terms Are Negotiable

As the real estate market begins to recover, it is more important than ever to understand the contracts that you are asked to sign whether you are purchasing/selling or leasing your home. While you may be presented with a pre-printed standard purchase contract or lease, each term is negotiable and should be looked at as such. Not only is it important to understand what your responsibilities are under the contract, it is equally important to understand the consequences of not performing those responsibilities.

All too often, we are asked to review a fully-executed purchase contract only after a problem has arisen between the purchaser and seller. The majority of the time, we find out that one or both of the parties did not understand their duties and responsibilities under the contract. While a good real estate agent can serve a vital role in the purchasing, selling or leasing process, they cannot give you legal advice. Buying or selling a home is one of the biggest and most important investments of your life. Hiring a real estate attorneys to review your contract prior to executing it can not only give you peace of mind in your decision, but it can also end up saving you thousands of dollars in attorneys fees if you are caught in a dispute later in the process.

Divorce – Do I Need An Attorney?

Divorces require time and attention, and can therefore lead to substantial attorneys fees.  Many parties work out many of the details of settlement on their own and question the necessity of hiring counsel.  After all, a party is permitted to file and proceed in obtaining a Final Decree of Divorce pro se, or “for oneself.”   The answer, therefore – much like the process itself – is not a simple one.  There is not a “one size fits all” solution.  Parties dealing with particular issues or living in particular jurisdictions (even within the same general geographic area) may “need” counsel more than others. 

Understand first that simply because both parties agree they want a divorce, a matter is not rendered “uncontested.”  If the parties disagree on any of the issues that the Court must determine in a divorce proceeding (e.g., property distribution, spousal or child support, child custody/visitation) then the case is not uncontested.  Even if parties are only arguing over whether Mr. or Mrs. gets to keep the engagement ring, the divorce is not uncontested.  What also occurs quite often is that parties agree on all of these matters, but one party will not actually sign a settlement agreement or Final Decree of Divorce setting forth the agreed upon terms.  This too is not an uncontested divorce. 

Where matters are  truly uncontested (involving parties who have settled all matters and have done so in writing), the filing party may nonetheless be living in a jurisdiction with stringent requirements for the content of Final Decrees or  other complex procedures or docketing practices that render it preferable, even if not necessary, to have counsel handle finalizing the divorce.   Finally, in certain cases, there may be unique complicating factors, such as a need to serve one’s spouse out of state or by publication.  So, although every jurisdiction in Northern Virginia provides a pro se divorce package containing the tools needed to complete most, simple, uncontested divorces.  Whether those tools can be used in your case is another question: 

If one’s case is fully uncontested -- meaning that there are no disputes regarding the existence of “no-fault” grounds for the divorce (i.e., six months’ separation with written settlement agreement and no children, one year separation otherwise); property distribution (i.e., everyone is satisfied with who is taking/keeping what); child custody & visitation; child support or spousal support, or no such issues exist (no children, no marital property) -- pro se might be the way to go.   In either case, the Plaintiff would indicate in his/her Complaint  for Divorce the status (e.g., there are no issues of equitable distribution, custody or support, or the parties have signed an agreement settling them all) and if agreed, the opposing party would “admit” (i.e., concede, agree with) that allegation in his/her responsive pleading OR waive the right to file a responsive pleading altogether.  If in fact some or all of those have been resolved, rather than do not exist, one must be sure that all agreed upon terms regarding children, support and/or property distribution have been reduced to writing in a settlement or separation agreement, or at least into the Final Decree to be submitted to the Court, before you ask the Court to finalize a divorce.  Courts will not simply divorce parties with children, for example, without addressing custody, visitation and support in the Final Decree, even if merely by reference to a written agreement. 

BOTTOM LINE:  If you’re going to go it alone, do it carefully, and it’s still a good idea to sit down for a brief consultation with a RRBMDK family law attorney to make sure that your case is ripe for filing, that you’ve addressed all potential issues with your spouse, that your ducks are in a row as far as filings and service, and that there don’t appear to be any complicating factors related to your case or unique to your jurisdiction.