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Episode 128 - Making the Most of your Mediation

Episode 128 - Making the Most of your Mediation Image

06/28/2019 2:50 pm

Recently one of our own, Robin Love, completed her Mediation training and is now a registered Domestic Mediator ready to help folks resolve their divorce in a whole new capacity. In this show, Leh and Todd interview Robin about her mediation training, what all was involved, and what she learned from the process. Now that Robin has had the unique experience of attending mediation in the lawyer and mediator chair, she shares with listeners valuable information on what people can do to make the most out of mediation and increase their likelihood of settling their case. She even discusses how you can use mediation to help your case when it does not result in a settlement.


Leh Meriwether: Welcome everyone. I am Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp and you're listening to The Meriwether & Tharp Show. Here you'll learn about divorce, family law, tips on how to save your marriage if it's in the middle of a crisis, and from time to time even tips on how to take your marriage to the next level. If you want to read more about us, you can always check us out online at Well Todd?

Todd Orston: Yes Leh?

Leh Meriwether: I think we kept our promise.

Todd Orston: And what promise would that be?

Leh Meriwether: Last week we promised we were going to bring a special guest on.

Todd Orston: Well that was an easy one.

Leh Meriwether: Because they were tired of listening to you.

Todd Orston: Well I mean, special. I mean come on. I mean, very special. Very special.

Robin Love: Warm welcome.

Leh Meriwether: Incredibly special.

Todd Orston: Yes we brought on an incredible, wonderful, special guest to talk about what Leh?

Leh Meriwether: Mediations.

Todd Orston: That's right.

Leh Meriwether: So one of our own has gone and gotten ... She's done all this mediation training to become a registered mediator in the state of Georgia. So everyone, welcome Robin Love.

Robin Love: Hi everyone. Thank you guys for having me.

Leh Meriwether: Well we're glad you made it. This is actually the second time you've been on the show isn't it?

Robin Love: Yes it is.

Leh Meriwether: What was the last show? It was the three things?

Robin Love: How to win your case before walking into court.

Leh Meriwether: Yes. That's a hotly downloaded show actually.

Todd Orston: Yeah, it's all Robin.

Leh Meriwether: It is.

Todd Orston: Because like I said, I know you fought against it when I was like Robin needs to come back.

Todd Orston: Okay. Are we not buying it? Okay.

Leh Meriwether: Well were going to take a deep dive on mediations today. But before I started, Robin actually put some show notes together for us. But I decided I was going to throw her off and just ask her questions that aren't on her notes. But she's good at that. She's good at handling things that we toss at her.

Robin Love: Now that you've bragged on me.

Todd Orston: No pressure.

Leh Meriwether: All right so Robin, I remember what I went through in the mediation training. I had a lot of surprises even though I had sat in the role as a lawyer in multiple, multiple, multiple mediations. It was really eye opening to go through the training. I don't want to say what I went through, but what was it that you experienced? Can you give us one, two, or three things that kind of like really opened your eyes where you're like wow, I never thought about that when you went through the training?

Robin Love: Yeah. Not just doing the training, which that was part of it, but also with having started mediating already. Well let me put it this way, as an attorney in mediations I would sometimes get impatient when mediators spent time talking in depth to my client about background facts or encouraging them to drudge up hurts and emotions and everything. My perspective was that one, I had already talked to my clients about it, so why spend more time going through it again, I was ready to get down to the business of negotiating. And two, I was afraid that them bringing up the past and the background and the hurts would cause the parties or my client or someone to get stuck on emotions rather than logic. And so going through the training and as a mediator I have learned the importance to the mediator's role especially to be able to build rapport with people. It makes them more comfortable. It makes them feel heard.

Todd Orston: It's cathartic.

Robin Love: It's cathartic. It builds trust. As a mediator it's very important that people trust you and feel like you've heard them because you've only just met this person today, you don't have the benefit of being in the role of an advocate so they sort of know you've got their back. You don't have the benefit of having met them and talked to them and built the trust over amount of time. So it's important that you do what you can in that role because later on in the mediation you're about to be the bearer of bad news and some pretty harsh reality checking. And people are more likely to be able to receive that if they trust you and if they feel like they've been heard. Number two, it also, like you were alluding to Todd, gives them a chance to vent to someone other than their attorney or family or friends who have to agree with them. They're able to tell their story to someone who's not just automatically on someone's side. Somehow it's more gratifying to tell your story to someone like that. And like you said, it gets it off your chest. It's Cathartic.

Todd Orston: Some people will say they want their proverbial day in court and that's not really what they want. They don't know what they're asking for really, because they don't want the day in court. But they need an opportunity to tell someone their story because they feel harmed, they feel wronged. So I agree with you.

Robin Love: And not only that, but as the mediator, it's not just about building rapport and building the trust and letting them vent. You're listening to clues about this person's personality. You're listening to clues about this person's perspective, their thoughts, their concerns, their motivations. What makes them do what they do and what matters to them. As you do that it helps you do your job as a mediator. Understand how to best communicate with this person because some people need a gentle hand, some people are motivated by money, some people are motivated by respect, some people are motivated by other things. But it helps you as a mediator to just better do your job. It helps you understand how to frame your reality checking with this person in a way that can be received by the person.

Leh Meriwether: Very interesting. How many hours of training do you go to to become ... Because you're registered as a domestic mediator right?

Robin Love: Right. So I did the general civil training. I actually did that twice. Accidentally. I did that years ago because I've always wanted to be a mediator, this isn't a new thing. But when I graduated law school I didn't even know how to practice law then, much less how to mediate a case. So what I didn't realize was if you let your certification lapse, you actually have to retake the entire training. So I took the general civil training again and then I took the training for the domestic mediation. And yes, everyone has to take it, even if you've been a family law attorney for 10 years, even if you've been a judge, everyone has to take the domestic training. And then you are required to either take a practicum or co-mediate cases. And I opted to co-mediate cases because I wanted that real experience.

Todd Orston: Is there still a requirement to do the family violence?

Robin Love: For?

Todd Orston: Training.

Robin Love: If you want to be able to do family violence cases, yes you have to take the family violence training. But I will tell you, I'm a certified mediator for domestic. For court, to get on the court list, like the county lists, a lot of them in order to be on their domestic list, they also require the family violence training.

Todd Orston: I know when I did the training, I did the general, I did the family, I did the domestic. But again, a lot of times, especially cases with a lot of domestic issues, I'm not saying they don't go to mediation, I'm just saying I didn't find a lot of those were going to mediation because ... Anyway, there were bigger issues that they were dealing with and maybe it just wasn't as easy to get to a place where they can go into a same room, let alone same building and mediate. But I know domestic issues come up in cases all the time but okay. So first of all, did you enjoy the training?

Robin Love: Yes actually. I was surprised how much I remembered from 10 years ago for the general civil. I had a fantastic instructor. I don't know if I can say her name.

Leh Meriwether: Sure.

Todd Orston: Yeah.

Robin Love: Pat Suta.

Leh Meriwether: Oh yeah, I know Pat.

Robin Love: She's fantastic.

Leh Meriwether: In fact I think she did my training too, years ago.

Robin Love: Oh really?

Leh Meriwether: Yeah. I didn't do the domestic, I did the general civil.

Robin Love: She's really great. We joked with her that we were going to have a little Pat voice in the back of our head telling us what to say.

Todd Orston: Instead of an angel, devil, Pat's on one shoulder.

Robin Love: Yes, exactly. One of the things is to get on the court list you have to do what's call the facilitative approach to mediation, as opposed to evaluative. And it's okay if the party's and attorney's want you to go into the evaluative. And in my experience especially with family law, most people want that and are a little annoyed at mediators who don't go there. But she taught us some really good tips of how to do some really good reality checking that is in a facilitative way. Which for her it just comes naturally, but with practice it's easier.

Leh Meriwether: Going back to on the last show, Todd was talking about the facilitative. The problem with that is basically the mediator just starts going back and forth handing offers. They aren't as engaging. They may come up with some problem solving, but they-

Todd Orston: If they're not doing that reality checking, quality testing, then it's really just a gofer going back and forth. Which becomes less helpful I have found.

Robin Love: I agree.

Todd Orston: So understanding that what I like is hearing that there is a way to do the facilitative method, yet inject it with that reality testing as opposed to the evaluative to do evaluations.

Robin Love: As opposed to giving someone-

Todd Orston: Right, where you could be much stronger in your thoughts about an issue and which way a judge might lean.

Robin Love: Right. And you do it by basically wording it into questions.

Leh Meriwether: You know, a question I have is why can't we have more time?

Todd Orston: Don't have an answer to that.

Leh Meriwether: I know. Actually I probably do know, but anyways. We'll be right back and when we come back, Robin is going to tell us how to make the most out of your mediation.

Leh Meriwether: Welcome back everyone. I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp and you're listening to The Meriwether & Tharp Show. If you want to read more about us you can always check us out online at Today we're going to continue. We're continuing our show about mediation. So we're taking a deep dive ... Well not just us. We have Robin Love in studio with us and yes her last name is Love, even though she is a divorce lawyer. But now she's not just a divorce lawyer, she's also a divorce mediator. And she just finished the training, she's already done a few mediations, so she wanted to share with everyone, how do you make the most of your mediation.

Todd Orston: And very quickly, like we said in the last show, I want to reiterate, most cases settle. If they weren't settling, if the majority of cases didn't settle, then the system would shut down. So 80 plus percent of cases end up settling and mediation, especially as a form of alternative dispute resolution, most courts require an effort to settle your case at mediation. In other words, if you're saying I just want my day in court. Okay great, first you're going to go to mediation. Okay and if that doesn't work, and you better make a good faith effort to try and settle at mediation. Otherwise if the court hears that you didn't, maybe there are some ramifications. But that's why mediation is so important. And anyone who goes into that process thinking they can just wing it, you're making a mistake. There absolutely are things you can do to optimize the chances to make the most out of your mediation, and that's why we wanted Robin on the show, so she can educate everybody and let you know that there are tips and tricks and things to think about as you're preparing for and going into mediation.

Leh Meriwether: Yeah. I've had mediations where my client was like this is a waste of time, we're not going to settle. Because we had a great mediator like Robin ... Robin wasn't the mediator in that one. That would be a conflict of interest. But we had a great mediator and the case settled and the client was shocked. But it happened.

Robin Love: But you have to go into it with an open mind, understanding its importance. Since you guys did an entire show on it, we don't have to spend as much time on the first part, talking about how widely effective mediation is and how it differs in good ways from litigating cases, from having to end up going to trial. For one, it keeps your future and your kids' future in your hands as opposed to a third party judge who's never even met your or your kids. It's cheaper than litigating obviously, than going to trial.

Leh Meriwether: Big time.

Robin Love: It's cheaper in both time and money. It can take forever just to get a trial scheduled and then to get through the trial. And then even though you've gone through the trial, a lot of time judges don't rule from the bench. You're then having to wait for the written order.

Leh Meriwether: I had to wait one time six months to get our order.

Robin Love: Geeze.

Leh Meriwether: There was a lot of money involved in that case but still. It was separate property issues, but six months.

Robin Love: Mediation is private, whereas trial is public. So you're airing out your dirty laundry for all to hear. All of your private facts about you, your children, your past, your finances, all of that is aired out. Relationships are often damaged after going through trial. Whereas mediation can be a step toward repairing relationships. You can come up with more detailed and creative solutions at mediation. A judge's hands are tied by the law and they're tied by how much time they have. Especially with parenting plans and some of the creative financial solutions you can come up with. Judges A, don't have the time to think about every detail of your finances and your life to make sure they're addressing every little thing. And Two, parties can contract around the law, whereas the judge has to abide by it.

Leh Meriwether: That's a good point there because I've heard some judges have like ... Well I've got four buckets of parenting plans. And if you fall in one of the buckets, it's like, oh this is a parenting plan you get. Regardless of whether that parenting plan actually will work for you, because maybe there are some little nuance that nobody knows about. But with mediation, you have your future in your own hands.

Robin Love: Right.

Todd Orston: Well in the last show we talked about a judge addressing people in court saying that their method, it's the difference between at mediation a surgeon with a scalpel as opposed to a chainsaw. And as horrible as the analogy was ... And I felt the need to repeat it here. It is accurate and we've all heard, all three of us have heard judges say, "I know nothing about you, and you're asking me to make decisions of where a child is going to be and who's going to make decisions, and things that you really should be deciding", and mediation is that tool. It is that avenue that you can use and go down in order to play a part in making big decisions that are going to carry with you for years to come and can really help mold your child and your child's future.

Leh Meriwether: And I'm glad you mentioned that part about the advantage of mediation is sometimes it can help repair the relationship. And some people are like, "Well hang on a minute, I'm getting a divorce, what do you mean repair it?" Well we're talking about the parenting relationship.

Todd Orston: The co-parenting relationship.

Leh Meriwether: The co-parenting relationship. Whereas I've seen trials just tear that apart and there was never a recovery.

Robin Love: Yeah exactly. And not just co-parenting, but even being able to heal and move on if there aren't kids if it's a divorce. Because, what we were talking about earlier, it's a chance for you to tell your story in a private setting to a neutral person and you can say as many bad things as you want or need about the other person and they're not sitting there in the courtroom hearing you say it.

Leh Meriwether: That's a great point.

Todd Orston: Yeah. A trial can be emotionally traumatic. I'm sorry. I'm laughing because ... Slow it down.

Leh Meriwether: Robin looks like yeah it's me. It's me. [crosstalk 00:17:34].

Todd Orston: It was a fantastic point that trials can be emotionally traumatic and we've seen that. And you know where you often see it? You see it with those cases where they have the trial and within three months they're back for a contempt, they're back for a modification, and years go by and I can't even count on one or even two hands the number of times they've come back to court. And I'm not going to blame it all on the trial, but you know what, it does have something to do with it.

Robin Love: Yep.

Leh Meriwether: So what is the most important thing that you should do before your mediation?

Robin Love: Well prepare for it. Like you were saying earlier, don't think that you can just come in and wing it. Even if you don't want to go to mediation, even if you don't think it's going to settle, prepare for it. You're going to be there anyway, you might as well make the most of it. And to prepare, there's all kinds of ways to prepare. But for our purposes today, the main one I want to point out is think about what you want before the mediation, but also think about why. Why do you want this? Why do you think that you need this? Because that's going to help the mediator do their job to come up with creative solutions. Because you may think that you want this and the only avenue to get there is A, but then the mediator may be able to come up with B and C as alternatives too, if they know the underlying motivation. Does that make sense?

Todd Orston: It does. So in other words if you go in and you're asking for high alimony because you're afraid of health insurance and uncovered costs and things like that, if you can say, well this is what I'm concerned about, well maybe the alimony will go down, but we can get you coverage or we can get you some other assistance that will cut down your expenses and okay, so now you don't have the alimony, but you have a paid for car, or you have a this. Now all of a sudden you're less scared. Because really that's one of the biggest problems in mediation. It's fear. And that can really hold people back from reaching agreements, so going in prepared, being able to explain why you want something can be powerful.

Leh Meriwether: I think another advantage there too is sometimes mediations can take forever to get started. So a mediator sits down with a person, "Well what do you want?" "Well, I'm thinking I want primary." I'm like "Okay, what's that look like?" Well-

Todd Orston: Before we get into that, let me talk about when we were dating and I have this three hour long story I'd really like to share that's important. Sorry, I was flashing back to a few that I've been in. No but right, going in prepared and being able to very efficiently explain what your positions are, what your justifications for those positions are, that can speed things along and also increase the chances of success.

Robin Love: Right, exactly.

Leh Meriwether: And Robin, you as a mediator, part of your role is to try to get them past positions and to find out what's really going one.

Robin Love: Right, exactly.

Leh Meriwether: What else should they do to help prepare for mediation?

Robin Love: I think it's a good idea to try to get your attorney to go ahead and draft some settlement documents prior to the mediation. Of course there are some strategy considerations you would want to look into, but most of the time in my opinion having settlement documents already prepared and even sent to the other side so that if you come to an agreement you can just type up that formal agreement or make the tweaks and changes to it, and you've got an actual full fledged agreement. There is an attorney who I work for, his name is Leh, who actually taught me that. And it's a fantastic practice.

Todd Orston: I've heard of him and I've got to tell ... Terrible things. Terrible, terrible things.

Robin Love: It's actually a fantastic practice. Because otherwise you're spending weeks and months arguing over legalese and finalizing these bullet point agreements. Whereas the other way doing it with a settlement document prepared, you're done.

Leh Meriwether: So up next, Robin's going to answer the question of, why you should not be afraid to ask why during your mediation.

Leh Meriwether: Welcome back everyone. I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp and you're listening to The Meriwether & Tharp Show. If you want to read more about us, you can always check us out online, Well we left off Robin was talking ... By the way we've got Robin Love in studio with us and she has recently completed her mediation training. What is that, 80 hours of classes?

Robin Love: An eternity.

Leh Meriwether: 80 hours of classes to become a civil mediator and then a domestic mediator. I think the civil's 40 hours and you have to do another 40 hours for the domestic mediator. So she went through that grueling process and now is a registered mediator and has a few mediations under her belt as a mediator not just as a lawyer. And where she left off she was talking about how the smart guy told her about preparing settlement agreements in advance of mediation. So you can really articulate things and operate off that document so at the end of mediation, everyone can sign off on the mediated document.

Robin Love: Right. And if there's a disagreement as far as language or other type of legalese, you've also got the benefit of having the third party neutral there to sort of help mediate even those issues.

Todd Orston: Now it is important I believe to just explain that the good thing about a mediator also when you go into the process, is they can't be called as a witness, and so the whole purpose is you want to feel comfortable that you can share what you want to share and it's not immediately going to be used against you in court. So what you're talking about is not that. What you're talking about is there is an issue regarding the drafting, about the world choice, whatever, and you might know what the intent was, and you might be able to help guide them and say "Hey, my recollection was that the intent was to accomplish X, Y, Z, and so that's what I thought that language was supposed to read or how it was supposed to read."

Leh Meriwether: And so there are times when you may only have the time to do a ... Somebody's got to go and you hand write an agreement. But my first experience of a handwritten agreement was the mediator wrote it and nobody could read her handwriting and she'd gone on vacation. So we had this big breakdown. So that's actually what started it. Like that's it, I am typing everything. We are signing off on it.

Robin Love: I've had that happen too, where I couldn't read the writing.

Leh Meriwether: That's a great point that if you ... The nice thing is sometimes lawyers get into a fight about wording of a document. They've agreed to these very basic terms. As the phrase goes, the devil's in the details. So you try to commit that to writing, and suddenly there's a dispute. You go back and forth and it can cost a lot of money in attorney's fees going back and forth and back and forth.

Todd Orston: Or you end up back in court because there are huge differences of opinion as to the way it's supposed to read, and you have to end up going to court and the judge at that point is not happy with you.

Leh Meriwether: Yeah. So that's a great point Robin that if you plan in advance you can have them keep the mediator there to help you craft an agreement that works for everyone. Is there any other preparation tips that you can think of having gone through the mediation course and been a lawyer for so long?

Robin Love: It's helpful as a mediator, especially if there's lots of assets or financial issues if you give your mediator a copy of your marital balance sheet. Give your mediator a copy of the financial affidavits. That really helps the mediator do their job and to keep all of the details straight. So a copy of the child support worksheet, things like that.

Leh Meriwether: We probably should say here, because there are some lawyers that don't use marital balance sheets. And the funny thing is, some of the mediators, we'd show up to mediation and the first thing they say, "Okay where's your marital balance sheet", to us. It's kind of funny. So a marital balance sheet basically is a listing of all your assets and liabilities along with the value, where that value came from, and then a husband and a wife column. So if you're making a proposal you have in the husband's column what you think he should keep and the wife's column what she should keep, and then you've got a separate column for sometimes separate property. You'll say well, we have an IRA over here, but she had it before they ever go married so we're going to take that out of the marital balance sheet. But you still list it.

Robin Love: Right.

Leh Meriwether: Some people don't know what it is.

Robin Love: Yeah, that's good.

Leh Meriwether: Robin.

Robin Love: Yes?

Leh Meriwether: Why is it you shouldn't be afraid to ask why during the mediation?

Robin Love: Well I feel like we've already sort of talked about it some. It's important to try to understand the underlying concerns or motivations driving particular positions. It's the way you get people off of positions and instead to talk about interests, which is what you were saying that's part of the job of the mediator, is to get people off of positions and onto interests. Once you understand the underlying concern and your mediator does, then other solutions open up to you. You see what I'm saying?

Leh Meriwether: Yep.

Todd Orston: In other words, you're not challenging if you present it. It's not what you say it's how you say it. So in other words, confronting them not by saying "Why you what that", as opposed to "What is it you're trying to accomplish", which then leaves the door open to different alternatives.

Robin Love: Right.

Todd Orston: Okay.

Robin Love: Like saying, "Tell me your concerns. Why is it that you want that? Why is it you think that that's necessary?"

Todd Orston: Right.

Leh Meriwether: And so as you as the mediator, how does that help you?

Robin Love: Well a good mediator will try to help you discover the underlying concerns driving a position, both yours and the other side's. A good mediator will also help you come up with alternative options or creative solutions. It also helps ... Like I was saying earlier, it helps the mediator understand how to frame the reality checking. If someone is just very concerned about the children, then you understand that some of the reality checking means you could use would involve, how you think that would affect the kids. You see what I'm saying?

Leh Meriwether: Right. Yeah because I could see sometimes people's fears is ... It's not rational. There's nothing it's based on. It's just that someone, they're about to miss at least half their children's lives even in a 50/50 custody arrangement because they're going to be living with someone else outside their house.

Robin Love: And that's another good point that you make. It also helps the mediator to explain to each side the underlying rationale before a certain request.

Todd Orston: And all these things, it's important or at least I think it's important to reiterate, the reason we're hitting it from this angle, meaning we brought you on the show other than because every time you come on our ratings go through the roof, is that we want listeners to be able to make the most of mediation. So let's not lose sight. If you're listening, what we're trying to do is give you sort of insight into the thinking, the mind, of a mediator because you need to know what to feed the mediator to get the most out of that mediation. Because that's the tool. I don't know of a different way to put it, but in essence the mediator is a tool.

Leh Meriwether: Are you calling Robin a tool?

Todd Orston: I did not. That's why I was being very careful. I am not. I may call you a tool now. But he or she is a tool to be used. And if you don't know hot to utilize the tool, or you don't utilize the tool correctly and efficiently, then it's not going to work for you. That is why I think giving you options as a mediator is so important. Not speaking absolutes and being open to options is so critical if you're going into this process.

Leh Meriwether: I do want to make this one comment. That at Meriwether & Tharp we take our jobs as lawyers and family law very, very seriously. But on this show, we don't necessarily take ourselves too seriously.

Todd Orston: I never take you seriously.

Leh Meriwether: But we take a more lighthearted approach if people didn't catch on. But I did feel it was important to say look, we do take this very, very seriously.

Todd Orston: We do this because we care and because we feel it is important. We understand people are in a lot of pain. And while yes, we joke every once in a while, it does not detract from or should not detract from the seriousness of what we're talking about. You have one shot. If you have to go through a divorce, you have one shot to make sure that the end result is the right result. And so these tools, like mediation or on the last show we talked more generally about ADR and the different types of tools you could use, these are tools to help you accomplish what's going to work for you, not just short term, but long term. Talking with or seeing inside the mind of Robin or anybody else is so critical I believe because that way you know how to use the tool. You know how to go in and best use that mediator to accomplish your goals.

Leh Meriwether: Hey Robin, I know we're not going to have a chance to finish in this segment. We have one more segment. But let's start here and we'll finish up the next segment. Even if you don't come to an agreement, how can mediation be useful?

Robin Love: Mediation is incredibly useful even if you don't come to an agreement. For one it's a way to get things moving. It's a way to force the other side to deal with the case, to engage. And it's a great opportunity to learn their positions. This goes back to asking why. If you ask your mediator why did they say they want that, then it helps you understand their underlying concerns. It helps you understand their arguments, their positions. Even without the why, you're getting an idea of what it is that they're looking for. What they're going to ask for should they go to trial.

Leh Meriwether: So their interests.

Todd Orston: That's a really important point.

Leh Meriwether: Yeah. Well up next we're going to finish up on this point and then Robin's going to talk about the mechanics like the procedure of the mediation process. So you definitely don't want to miss that. She's going to break down why you can say all kinds of horrible things about your spouse in a mediation process and they never hear about it.

Leh Meriwether: Welcome back everyone. I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp and you're listening to The Meriwether & Tharp Show. If you want to read more about us, you can always check us out online, If you want to listen to past segments or read transcripts of the show, you can always find that at

Leh Meriwether: In studio today we have with us the lovely, talented Robin Love, who is not only an attorney at Meriwether & Tharp, but she is also a registered mediator.

Todd Orston: Why don't you ever introduce me like that? As the lovely and talented Todd. No? Darn it. Okay.

Leh Meriwether: Nice try.

Todd Orston: All right.

Leh Meriwether: I'll think of a good intro for you next time.

Todd Orston: Let's forget I said anything.

Leh Meriwether: Oh no, you challenged me now. No, but today we're talking about mediations. Last week we talked about ADR, but we're taking a deeper dive into mediations because it is the most commonly used alternative dispute resolution forum. And we have the benefit of someone who just went through all the training and she has this brand new perspective on mediations, and that was the one thing that jumped out at me was a whole new perspective on mediations when I went through the mediations process, from the perspective of the mediator not the lawyer advocating. So where we left off was, how mediation can be useful even if you don't reach an agreement, at least at that point. And I know you had a few more points you wanted to hit but we ran out of time so keep going.

Robin Love: Well to go back to the last point, it gives you an opportunity to learn the other side's positions and to learn their arguments prior to trial. That is helpful, not just for the mediator to know, but that's helpful for you to know, for your attorney to know. Because it gives you an idea of what issues you're going to have to have evidence about. How to come up with defenses. What discovery you need to do after that. What legal research your attorney might need to do.

Todd Orston: Yeah, I've learned at mediations that were not successful, about issues that we had no idea. When I say we I mean my client and myself. Issues of abuse, issues of neglect, issues of-

Leh Meriwether: Allegations.

Todd Orston: Allegations of wasted assets. So all of a sudden we leave mediation and my client will be frustrated. We didn't agree on anything or didn't reach an agreement. And I'm able to look at them and go, "Yeah but now we know exactly their roadmap, exactly what their plan of attack is because I know they're going to make this claim, this claim, and that claim, and now we can start gathering the evidence to defend against it."

Robin Love: Right. You're no longer blindsided.

Leh Meriwether: And I think that ties into one of the first things you said Robin, was it's a way to keep things moving because sometimes the other side just won't communicate, they won't lay out a proposal. You can't get any sort of traction on the settlement process to get to mediation. And then that first mediation just becomes all right so that's what the hold up is, this is why we can't settle it. Let's do a little bit of research, a little bit of discovery, and then you reconvene for another mediation. Now sometimes you need to bring a guardian ad litem involved to investigate the claims or perhaps a forensic accountant to investigate the claims, but then you gather more information and come right back to mediation.

Robin Love: Yep.

Leh Meriwether: All right, keep going.

Robin Love: It also gives you and or your attorney the opportunity to gauge the type of witness the opposing party would be. Which, from an attorney perspective, that's very helpful. The other side, they have to put their cards on the table. That of course goes to what we were just talking about. It gives you and the other side an opportunity to vent in a private and safe setting as opposed to venting for the first time on the witness stand and losing it in court where it can hurt you. It's an opportunity. You were saying earlier Todd that mediators are a tool, but it's an opportunity for you to run some of your arguments or some of your evidence by an objective, detached, third party neutral. You can get their opinion or their view on some of the issues or on your arguments, or on this piece of evidence. It gives you an opportunity to get their opinion about what they believe the judge may or may not rule with respect to certain issues.

Leh Meriwether: So let's spend the last little bit of time we have left to talk about the mechanics of the mediation because there is a ... Going back to the comment we brought up is that it's an opportunity to vent. There's parts of the mediation that you don't want to do that and there's parts that you do. So let's start at the beginning. How does a mediation start? Let's assume you're meeting under the same roof, how does it start?

Robin Love: Well there's usually opening remarks by a mediator. But in family law world, most of the time the mediations start off separately. That's most of the time what the parties want to do. But sometimes the mediations start off in what's called a joint session. In the joint session the mediator will give some opening remarks and it's just reminding the people of what the rules are, of the confidentiality. If you threaten child abuse then the mediator does have to report that, but other than that the mediator ... You can't subpoena them to testify about anything and everything is private. Again in family law, most of the time people want to be separate and so the mediator would do that twice with both parties.

Todd Orston: And the reason for that if they're ... Of course safety concerns. But I've always loved separate caucusing. Even when parties are getting along not that badly. Obviously it's a divorce. Because it is inevitable that someone will say something to trigger the other person. In a case where emotions can potentially run high, I was always of the opinion and am of the opinion why take that chance? I'd rather just stay separate and that way you are behind closed doors and you have your own session with the mediator and your client can say whatever they want to say without fear of it triggering the other person.

Robin Love: Yeah. For me it depends on the case and the circumstances. Usually I like to ... Even if we're not going to meet together, I like to go over and meet the other person and shake their hand, look them in the eye, let them know I'm a person. I'm not an evil person out to get them.

Todd Orston: I agree with that. I agree with that. I mean doing a quick intro or ... What I really like, my ideal is having the mediator do the intro but then not even doing-

Robin Love: Opening statements by the attorneys, yeah.

Todd Orston: Opening statements or anything like that. Allow us to sit in the room, just listen to the mediator and then break into the separate caucuses and then you can make your opening during that closed session.

Robin Love: And I think that's the most financially smart way to do it because then you're not paying the mediator to go through the opening remarks of the mediator twice.

Todd Orston: That's right.

Leh Meriwether: Right. Now, the reason I brought that up, because as you said Todd, that joint session is not the time to vent and unload on the other side. Because all it will do is set the mediation backwards 10 paces. And a lot of times if I know the opposing attorney on the other side, we'll do a joint session and the lawyers don't let the clients talk, we just say, "All right, here are issues. Here's the four core areas. Here's our positions on them. Here's where we need your help today." And so we lay out here's where we're apart and the other side will agree, "Yep. We're apart. That's where we're apart." Sometimes one of us will give the opening statement and the other one might, "Nope, that's pretty much it." Because we were already on the same page and the mediator's like, "Well wonderful, let's break into caucuses and get right to it."

Robin Love: And that's so helpful, especially now having been in the mediator's seat. You go into a mediation, you know nothing about the case. You don't know if it's a legitimation, if it's a divorce, if there are children. You know nothing about it. And to have people just sit down and immediately start talking and throwing facts at you without first giving you sort of the 30,000 level, this is a divorce, there are children.

Leh Meriwether: Yeah. All right, so then you break apart in caucuses and is that the time it's okay for someone just to vent?

Robin Love: Well, yes actually. You don't want to spend all of your time just venting because you're paying for mediation, you're not paying for therapy at that point. You're not just paying the mediator, you're also paying your attorney at that point so you're in very expensive therapy. But you say enough to give the mediator an idea of your feelings and the backgrounds and the things that are important to you and your positions. And then the mediator will probe you to get you off of the positions and into interests and everything. But yeah, I mean that is the better time to vent. It's private, it's confidential. If there is something you don't want the mediator to go back and tell the other side, then you simply say that. I'd like for this to remain confidential. And most mediators, they have an idea. You know, if you say they're a fugly slut, then they're not going to go back in there and say, "Well, he says you're a fugly slut."

Todd Orston: If I had a nickel for every time Leh referred to me ...

Robin Love: There's your new introduction.

Todd Orston: Yes. There you go. We just figured it out. No, but I'm glad you brought that up because you do have the ability to say what you want and most mediators have a good sense. Like they know if I go over there and convey that message, it's going to derail things, it's going to set us back 10 paces like you were talking about.

Robin Love: Right. And if you say this is where we want to offer right now, but we're willing to do this, the mediator has enough sense not to go over there and start with your bottom line.

Leh Meriwether: Yeah. Bottom line, we're out of time. Unfortunately. Again. Hey Robin, thanks so much for coming on the show.

Todd Orston: Thanks Robin.

Robin Love: Thank you for having me.

Leh Meriwether: Yeah. We really appreciate it. I'm excited for you to be a mediator. I wish you could mediate our cases. But then you wouldn't be a neutral so that won't work. But hey, if you're listening to it and you need a good mediator and you're not actually a client of ours, give us a call. Have your lawyer call our office and ask Robin to be your mediator. And if you're enjoying the show please post a review about it. If you're hearing about it in a podcast director we would really appreciate a five star review and thanks so much for listening.