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223 - Painting a Picture of What to Expect at Mediation

223 - Painting a Picture of What to Expect at Mediation Image

12/28/2021 5:00 pm

In this show, Leh and Todd

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Transcript

Leh Meriwether: Welcome, everyone. I'm Leh Meriwether, and with me is Todd Orston. We are your co-hosts for Divorce Team Radio, a show sponsored by the Divorce and Family Law Firm of Meriwether & Tharp. Here you learn about divorce, family law; and from time to time, even tips on how to save your marriage if it's in the middle of a crisis. If you want to read more about us, you can always check us out online at AtlantaDivorceTeam.com.

Leh Meriwether: Todd?

Todd Orston: Leh?

Leh Meriwether: I was just making sure you were still there.

Todd Orston: Where would I be? Where would I go?

Leh Meriwether: Hopefully nowhere because we have a good show today.

Todd Orston: I'm excited about this one. We've talked about this issue, this topic before, but both you and I we have training in it, we have obviously a lot of experience in it, and we believe in it. It's a great tool that can help people avoid trial and prolonged protracted litigation.

Leh Meriwether: Oh, which reminds me I need to update my registration because you have to... Well, you don't have to, but most folks register with the Georgia, at least here in Georgia, the Georgia Office of Dispute Resolution, because we're talking about mediation today and I am a registered mediator.

Todd Orston: That's right. And mediation, ADR, you may hear someone refer to it as ADR, or a type of ADR, and that is what Leh was just talking about: alternative dispute resolution. Mediation is a fantastic tool that is oftentimes required by courts. It used to be a lot of courts, if they required, it was required before a final trial. There are even courts where, if you need temporary assistance, before you can get that assistance you need to go to mediation. It's a great tool where a mediator, what we call third-party neutral, can help the parties bridge gaps, and get them to an agreement to resolve issues, which then of course makes it unnecessary to take it to that next step of litigation where you are going in front of a judge and having hearings or trials.

Leh Meriwether: Absolutely. And I really do... How many? What is it? I can't remember the figure. But it was something like 90% of cases are settled through some form of alternative dispute resolution.

Todd Orston: I believe it. We've been saying that for years. Even in the absence of stats, I have always said... I used to say 80-plus-percent. It was my belief that that many cases settle, and a lot of it is due to the fact that mediation is a tool that is commonly used. There are situations, of course, where parties can just be reasonable, and they sit down at the kitchen table and they educate themselves about the issues; and they themselves, without the help of any third party, get to an agreement, but that's not always the case. As a matter of fact, most of the time there are barriers to success; and a third-party neutral, with all of the tools in the mediator's toolbox, can get parties to hopefully put aside the anger, put aside the emotion, focus on the issues, and get them to an agreement that works for everybody.

Leh Meriwether: Yeah. Going back to what you said about reasonable parties sitting down and working things out across the kitchen table: there are circumstances where that works well, but there's actually a lot of circumstances where that's not a good idea.

Todd Orston: That's a great point.

Leh Meriwether: And what I mean by that is you, and we're going to focus on divorce in reference to mediation, this is your first time, for a lot of folks going through a divorce, and you don't know what to expect, and an experienced mediator can do what's called reality checking as you work through things, and they're not there to create disputes. They're there to confront something that may be missing in your thought process when it comes to reaching a settlement because you can be leaving things out of your agreement that will cause problems later on. You can put together an agreement that you think is great, but for all practical purposes it's a nightmare, and we've seen that so many times. We've had people come to us, they went to mediation without their lawyers, and they had agreement typed-up; in this case, I'm actually referencing a mediator that traditionally didn't do.... And we probably should talk about that on this show about [crosstalk 00:05:04].

Todd Orston: That's a great point. Absolutely. Yeah.

Leh Meriwether: This mediator did not have a whole lot of experience in divorce. They are a great mediator, but they didn't have a whole lot of experience in divorce. And we get an agreement, they came to us with agreement, and we realized there was problems with this agreement that they were going to experience fairly quickly because they did not account for circumstances that were going to come down the pipe. And since they were so reasonable where they were, we got them back together for subsequent settlement discussions; and I can't remember if we wound up doing another mediation or not, but the lawyers got together because each side...

Leh Meriwether: What happens, when they came to us, we identified several problems, we couldn't represent both of them because we can only represent one side, and the other side wound up getting an attorney, and we still worked it out, but here's where they actually saved money. Because you're like, "Oh, my gosh. You're telling me that you caused, all of a sudden these two parties that worked everything out, to have legal fees?" Yes, and that actually saved them money. And what I mean by that is we were able to work through future problems, identify them, and come up with ways to deal with them in the future because they had... and that would have avoided future litigation where they may not have been so reasonable because... as you and I have talked on multiple occasions, Todd... when parties suddenly get significant others... fiancés, maybe new husbands, wives... the tensions rise, where when they got the divorce everything was okay. But now there's a third party involved, or fourth party, and then it's difficult to be reasonable because you're being influenced by your new spouse or your new fiance or boyfriend/girlfriend.

Todd Orston: Yeah. Again, great point. And to be a little more specific, let me take a step back and say when you go to an attorney, an attorney obviously should understand the law; they should understand how judges in different counties, for the most part, apply the law, the facts to the law. Okay. But there are other benefits that mediators can provide and attorneys, which is they've seen not only what works, what is fair based on the law, but they've seen what doesn't work.

Todd Orston: For instance, financial issues. We have seen people enter into agreements that put them financially in a horrible place; and oftentimes, and we've said this time and time again on the show, they will then contact us afterwards. They didn't use us first and they'll be like, "Well, I need to change this. This is terrible. I'm paying way too much money in support. I agreed to X and that's way more... " and we have to look at them and say, "More than likely, there's not much we can do. You agreed." Or custody issues that are either not going to give you the ability to play a role in your child's life, or have contact at a reasonable level with your child, and practically speaking the schedule doesn't work. And so it is so important to go in.

Todd Orston: And a big part of this show is going to be about preparation, but it's to go in prepared, to educate yourself, have the information that you need, and then go in and utilize this tool, and get all the value from it that you can, because it really is a great, incredible, valuable tool.

Leh Meriwether: Yeah. That's the point of this show. We wanted to start off by just highlighting a few things, where things can potentially go wrong, because we want to stress the importance of proper preparation to have this amazing tool of mediation work in your favor, to have a great agreement at the end of the day. Now, when I say great agreement, you may not be happy with the agreement; but from a holistic level, it may be a great agreement. Because often a great agreement is one that both sides are not happy with because there was compromise; and as a result people, believe or not, tend to abide by those agreements, and they are less likely come back to court versus going to trial. We've seen that. I've heard this from judges for years: that cases where people settle, they tend to never come back to court, but cases that go in front of a judge and there's a trial often come back to court again and again and again.

Leh Meriwether: We want you to be in a place where you can go to mediation, feel very comfortable with the mediation process, be prepared for mediation, and work towards a great agreement that accounts for most things. You will never... well, I won't say never... but most of them just can't account for every single circumstance that may happen in the future. But you do want to account for the ones that are most common, that an experienced lawyer or mediator can identify, as you all are working towards a mediation agreement, identifying potential pitfalls in the future... and based on your circumstances, your facts... and helping craft an agreement that will walk you around those pitfalls.

Leh Meriwether: When we come back, we're going to walk you through what a mediation looks like.

Leh Meriwether: I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 a.m. on Monday mornings on WSB. You can always check us out there as well.

Todd Orston: Better than counting sheep, I guess. Right?

Leh Meriwether: That's right.

Todd Orston: You can turn on the show and we'll help you fall asleep.

Leh Meriwether: There you go.

Todd Orston: I'll talk very soft.

Leh Meriwether: Welcome back, everyone. This is Leh and Todd, and we are your co-hosts for Divorce Team Radio, a show sponsored by the Divorce and Family Law Firm of Meriwether & Tharp. If you want to read more about us, you can always check us out online at AtlantaDivorceTeam.com. And if you want to read a transcript of this show, or go back and listen to it again, you can find it at DivorceTeamRadio.com.

Leh Meriwether: Well, today we're talking about mediation, and Todd's going to paint a picture of what it looks like on your mediation day.

Todd Orston: I didn't bring my equipment, but...

Leh Meriwether: I thought you said you liked acrylic.

Todd Orston: All right. Well, you know what? You were going watercolor and I still have issues with that. But all right, painting a picture. We thought that it was important because there are people who say, "What is mediation?" but oftentimes embedded in that question is, "What is my experience going to be like?" and I believe we've fallen short of that, of providing that picture.

Todd Orston: What does it look like? All right. We're going to get into all the prep work that you have done to properly prepare for and be ready for that mediation, but day of mediation arrives. All right. Usually, the ADR offices, alternative dispute resolution of different counties... so if you are in Cobb County, for instance, here in Georgia, or in Fulton County, or Gwinnett County... a lot of the different larger counties will have ADR offices; but if not, then you will be sent to a certain location, and I'm not talking like behind the dumpster at the gas station on the corner, "Show up there. There's going to be a guy. He's going to mediate for you." That's not what I'm talking about. There will be a place that you go, and you're going to walk in, and they'll be a receptionist. And basically, once you give them your name, they will basically wait for everyone to arrive.

Todd Orston: Once everybody is there, one of two things is going to happen: either the mediator is going to bring the parties into a room together; or if there are issues, if there are safety concerns, things of that nature, they may start with what's called separate caucusing. All right? And separate caucusing can occur at any time, and it depends on the mediator. One mediator might say, "Let's start with separate caucusing." Another mediator might say, "Let's bring together. But if things get unruly, we will separate." All right? And separate caucusing simply just means that [crosstalk 00:14:02].

Leh Meriwether: It's also dependent on the parties, too.

Todd Orston: Correct.

Leh Meriwether: Because if there's a situation of family violence, or something like that, they will not put you in the same room.

Todd Orston: Correct. That's correct. Or if there's just a power imbalance. There are situations where one party just feels like the other party is more controlling, and that they're like, "Look, if I go into that room, whether you realize it or not, the X number of years we've been together, he or she is just going to try and browbeat me into some kind of an agreement. I don't want that pressure." And so you might be brought together at the beginning because the mediator is going to have to go through a litany of what mediation rules are, what the mediator's role is, what the mediator's role will not be, and basically how things are going to work. And once you get that speech from the mediator, that's when you're going to jump in, and the mediator will say, "Okay, so talk to me. Tell me what's going on." Because you have to remember the mediator is coming at this cold. It's not like you have opened up the file ahead of time to the mediator said, "Here's what the case looks like. Now, can you help us?" This person oftentimes...

Todd Orston: And it's funny because years ago we used to send ahead of time to a mediator a mediation notebook. But for the most part, mediators, it's cold, so you're going to... At that point, the mediator will say, "Okay, let me hear from this party first, and then I'm going to go to this party."

Leh Meriwether: I will say there are some divorces where there's a lot more complexity; and in those situations, the mediator will often get a package ahead of time that both sides have put together. And I will say there's some states, Todd, that-

Todd Orston: Require.

Leh Meriwether: I don't know if require is...

Todd Orston: It's more common.

Leh Meriwether: It's more common practice than in Georgia. It's more common practice in Georgia to not do what's called a confidential mediation statement. The times I do them are when we have a very complex set of circumstances, and perhaps a large marital estate, or a very contested divorce... I'm sorry. Custody case. But apart from those two scenarios, we don't do it. Like Todd said, the mediator comes in cold, and so each side gives them what we call an opening statement designed to summarize the marital estate, the condition of the family, and what they're looking for as far as a settlement is concerned.

Todd Orston: And let me set a quick expectation. I have seen situations where the opening statement takes 20 minutes; I have seen mediators let it go on for far longer. If you jump right into separate caucusing, I've had situations where the mediator starts with the other party, and 25 minutes, 30 minutes goes by; and then the mediator all of a sudden knocks on the door and comes into your room, and you start working and telling your story. And I have sat in rooms for an hour-and-a-half to two hours waiting for the mediator to come in.

Leh Meriwether: Yeah.

Todd Orston: So it really just depends. A lot of times people will use that as an opportunity to just unload, and I always tell people going into the mediation, "Just be ready for anything. Be patient." All right? If you're going to utilize the tool and utilize it well, be patient because it may take time. Mediation is not a 30-minute kind of thing. You should expect you're there for at least four hours, a half day. But I will tell you many, many, many mediations that I've been involved in have taken a full eight hours. I've been in 13-hour mediations. So be patient. But the other side, they're going to take the time that they need; and hopefully you have, and this goes to the choice of mediator, a mediator that knows how to strike a balance, giving you an opportunity to tell a story without telling the entire story. "Well, when I was three I stole a pop gun and I... " No, we don't need to go that far back. Let's fast forward about 20 years. That really goes to also the management skill of the mediator you've chosen.

Leh Meriwether: And so let's talk about the mediator for a moment because again we're trying to set your expectation for the day. Let's say the mediator starts with the other side first: these mediators, and I could speak from being a mediator myself, they are not being persuaded in that meeting, and what I mean by that is don't... There's that natural inclination, if you haven't done this before, to feel like you're at a disadvantage if you don't go first, "Oh, the mediator is being persuaded by my husband's or my wife's... They're con artists. They're going to just totally get them in their back pocket, and I'm going to be in trouble by the time they get to me." Well, every mediator that I've ever dealt with, and anytime I've ever done a mediation, they walk in realizing, "All right, I'm going to hear one side of the story. I'm going to take some notes. And I realize that there's a second side of the story, and it's often very different, so I'm not going to jump to any conclusions while I get the first side's story."

Leh Meriwether: I want to make you feel comfortable because... and I can say this because I've been in a caucus where my client was getting very worried. I've been in mediations where we jumped right into caucusing, and the mediator didn't come into our room for three hours, and they were very worried like, "What's going on?" I'm like, "The mediator will get here." I knew the mediator, and I will say that's an advantage of having a lawyer with you. The lawyer will dissuade you from jumping to these conclusions. I mean they're not going to completely eliminate your anxiousness, but they will give you some background, some context, to what the mediator's doing.

Todd Orston: And very quickly, it's also going to then relieve you of some of that anxiety, which could affect the impact that this mediation can have.

Leh Meriwether: Right.

Todd Orston: In other words, the effectiveness of the mediation process. If you're just now caught up in anxiety because, "Wow. They spent three hours. The mediator must hate me now." Well, relax. The mediator's listening to the story because they can't just shut them down, but they're going to be fair when come in and talk to you as well.

Leh Meriwether: Yeah. They are also not there to judge your case, so be clear on that. They are not the judge. You're not going to walk away with a ruling after a mediation. They will reality check you. And if you've listened any of our other mediation shows, we've had mediators on talk about that. They do what's called reality checking, "Do you think that position is going to come across well to a judge considering these factors?" And that doesn't mean they're against you. That means they're checking you because sometimes you do take an unreasonable position perhaps that's caused by anxiety, but the mediator is doing their job by checking you.

Leh Meriwether: When we come back, we're going to talk about how to prepare for mediation.

Todd Orston: Hey, everyone. You're listening to our podcast, but you have alternatives. You have choices. You can listen to us live also at 1:00 a.m. on Monday morning on WSB.

Leh Meriwether: If you're enjoying the show, we would love it if you could go rate us in iTunes, or wherever you may be listening to it, give us a five-star rating, and tell us why you like the show.

Leh Meriwether: Welcome back, everyone. This is Leh and Todd, and we are your co-hosts for Divorce Team Radio, a show sponsored by the Divorce and Family Law Firm of Meriwether & Tharp. If you want to read more about us, you can always check us out online at AtlantaDivorceTeam.com. And if you want to read a transcript of this show or of the other shows, you can find them at DivorceTeamRadio.com.

Leh Meriwether: Well, Todd. Ready?

Todd Orston: Absolutely. Before we jump into prep, I want to also emphasize one thing we've talked about before, but remember that this is also a voluntary process; meaning unlike a trial where at some point the judge is going to make a ruling and you are bound by the terms, there is no ruling here. In terms of going in anxious, oftentimes I will tell people, "Listen, if the terms that are presented are absolutely unacceptable, you're not bound by anything. We can stand up at the end of the mediation... We have to give it a good opportunity. Sometimes the first volley, the first offer that comes in, is by no means the best one."

Todd Orston: I've started mediations where something comes in, an offer comes in, and I'm looking at my client and we are both... We have a look in our eyes like, "Who can get to our cars faster?" Like we just need to, "Let's just run. This is dumb. We're going to waste time and money," and I will then look at my client and say, "Stop. I understand. Now, let's talk to the mediator. Let's explain why this is so grossly unreasonable. Let's offer something more reasonable," and that's the job of the mediator, to keep working to get the parties to take small steps towards each other until they can both get to a point where... I love the saying, I've said it before, the saying that mediation: you know you've reached a great agreement when both parties walk away unhappy. That's what you were saying before.

Todd Orston: And so it's the mediator's job to... sometimes it's big leaps, and sometimes it's baby steps... but to get both parties to walk towards one another and get to a point where they can both be happy with the terms, so you have to be patient. But at its core remember if you can't get there: okay, you've given it your all, you have made a good faith effort, but it's voluntary. You can't be forced at that point to reach an agreement.

Leh Meriwether: Right. Now, you can be forced to attend mediation before a final hearing.

Todd Orston: Correct.

Leh Meriwether: But nowhere... And the only requirement of that traditionally is you have to give a good faith effort to settle the case. You can't walk in there, make opening statements, get an offer, and just walk out. That could be seen as not giving...

Todd Orston: Bad faith.

Leh Meriwether: Bad faith. I don't know if anybody's ever brought that up to the judge, but...

Todd Orston: I've never had to bring that up. I have had to bring up a failure to participate in mediation, meaning just not showing up.

Leh Meriwether: Right.

Todd Orston: But if they've gotten there it's really hard. Then it becomes a subjective thing. And then at that point, how much time am I going to waste going in front of a judge, filing a motion, getting in front of a judge to ask for sanctions, "Well, we went and I don't think they tried hard enough." Okay. Right. "Thank you, counselor. I'll take that under advisement."

Leh Meriwether: All right. Let's talk about preparation. Mediation, I will say the short answer is, you should prepare for mediation as if you were going to trial. Now, do you have to do every little thing like, "All right, I have these facts over here," or "I have these witness statements." Are they going to have to show up to mediation and tell the mediator? No. It's an informal process. Court is very formal. You have to follow the rules of evidence. Mediation is very informal; you don't have to follow those rules. When I say prep, you need to know what witnesses are going to... If it's a contested custody case or there's contested financial issues, you need to be ready to say what a specific witness is going to say, maybe have a statement from that witness, but they don't have to be there to testify, they don't have to have a sworn statement under oath.

Leh Meriwether: You just need to have the information organized and prepared to share with the mediator in an expeditious way. You don't want to spend an hour relaying information to a mediator that you could do in five minutes because you're losing valuable time and it's costing you money. A great example of how you do this is our marital balance sheets. We've done a whole show on how to put together a marital balance sheet. A marital balance sheet reflects the value of your assets, and how you valued them, the debts that you have, the debts of the marital estate, probably you want to have the most current statements, so that's the prep. The prep is, "All right. We have these four credit cards. What is their balance?" as of perhaps a few days before the mediation, maybe one week before the mediation, you put those on the marital balance sheet, you bring copies of those statements with you. What's the value of the house? Well, if the two of you are comfortable using Zillow, you could use Zillow; it's not the most accurate. You can have it appraised and have the appraisal with you.

Leh Meriwether: Now, the only exceptions I might say to not bringing people with you: if you have a business that you've hired an expert to value the business, you may want to have that expert present with you at mediation, because the other side might have their expert, and they're going to counter with certain points back and forth, and you want your expert there to counterpoint.

Todd Orston: Yeah. A great point. Look, we have talked about what we call the four core areas, so what you really need to do is think about the issues you're going to be negotiating. If you're going to be dealing with a support issue, if you are asking for support, you can't just go in and go, "I need support." You need to go in and say, "I need support and this is why. Here's my domestic relations financial affidavit. This is what my budget is going to look like. Here are bank records that show income that I've received to establish this is what my income is. This is a part of what my argument is in terms of why I have a need, why I am dependent on my spouse," so you have to go in prepared. If you just go in and go, "I want money," obviously you wouldn't say it exactly like that, but the mediator is going to go, "But you haven't shown any need. And if you go in front of a judge with that kind of an argument, a judge will laugh you or yell you out of court, will say you haven't proven anything."

Todd Orston: Just like court, you did a great job of saying... It's not exactly like court because you don't need to do the same level of prep, you don't have to bring all the witnesses, and all that. But similar to court, you need to go in prepared so that if you say, "I have a need," and the other party goes, "They don't. They can work." "Really? Here's my records. Here's my records of my last job was eight years ago. And since then, here's records that show income I've received every year. And by the way, this is what I do for a living. I have been applying. Here's a packet of all the applications that I have sent out. And basically it's going to take me I believe this much time, maybe some education and training, and that's going to have a cost. And by the way, here's my budget, and this is what he makes." So boom, here you go, "This is my need."

Todd Orston: Then a mediator can go back to the other side and go, "Listen, I know you're saying that she works. She hasn't worked in eight years. And here's all the information she provided. I've got to tell you, I don't know what's going to happen, but you're going in front of this judge, you've been married for 22 years, I think you need to be open to the idea some support is probably going to be ordered."

Leh Meriwether: Right.

Todd Orston: And so that's what we're talking about when we say go in prepared. You can't just ask. You have to, to a certain degree, show that you have the proof necessary, if you go to court, to show a judge, "This is what I need and it's reasonable based on this evidence."

Leh Meriwether: Yeah. And the reality checking done by the mediator is going to vary. Some mediators will really push a party if they are presenting something unreasonable; but other mediators, I don't know why they just don't push the reality checking as much, so again trying to expectation set. If you can pick a mediator ahead of time and get... Lawyers do a great job of knowing who's good at pressing and who's not, who's good at reality checking and not. If you have a lawyer, let your lawyer pick the mediator. Sometimes you don't get a choice. Sometimes you're assigned a mediator by the ADR department because the other side won't agree, and then it's even more important that you are prepared when you walk in there.

Leh Meriwether: Now let talk about something psychological as well. The more prepared you are when you walk to mediation, the more succinct you are, there are two psychological impacts it can have: one, it can have an impact on the mediator. If the mediator sees you reasonable, prepared... and the other side unprepared, unreasonable... the mediator is going to push the other side harder, especially if they make things up, or they make certain assertions. The mediator, when they're reality checking, they're going to point out, "You're not even prepared. What do you think is going to happen court when you walk in like this? You don't have any evidence to counter what your spouse is presenting." And two, it creates doubt in the mind of the other party as well. And when we come back, we're going to finish explaining the psychological impact of being prepared.

Leh Meriwether: I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 a.m. on Monday mornings on WSB. You can always check us out there as well.

Todd Orston: Better than counting sheep, I guess. Right?

Leh Meriwether: That's right.

Todd Orston: You can turn on the show and we'll help you fall asleep.

Leh Meriwether: There you go.

Todd Orston: I'll talk very soft.

Leh Meriwether: Welcome back, everyone. This is Leh and Todd, and we are your co-hosts for Divorce Team Radio, a show sponsored by the Divorce and Family Law Firm of Meriwether & Tharp. If you want to read more about us, you can always check us out online at AtlantaDivorceTeam.com. And if you want to read a transcript of this show, or the other ones we've done, you can find them at DivorceTeamRadio.com.

Leh Meriwether: Well, today we're talking about mediation. We're really giving a general background about the mediation process, what to expect, and now we're talking about preparation. And I started making a point when we had the break, we had to take a break, about the psychological impact of coming in, in some cases, over prepared. It can have an impact on the mediator. Now, they're not there to make a decision in your case; but if they see that you're organized, all of a sudden your position becomes more credible if the other side's disorganized, and they may push the other side harder to settle.

Leh Meriwether: Now, it can have an impact on your spouse. If they see you come to court very prepared, very organized... and not taking an emotional position, more of a logical position by backing up everything you're asking for with pieces of evidence... it's harder for them to fight about it; and number two, they get nervous about going to court. If there's a hearing around the corner and they see their lawyer is not prepared, all of a sudden they're going, "Oh, my gosh. I'm going to get my butt whooped in court, so I need to settle now because my lawyer's terrible." I mean I've literally heard that from other people.

Leh Meriwether: You know you've done a good job when the opposing party refers you a case later on, and then the opposing attorney, because sometimes the opposing party... I mean a lawyer, you're an advocate for your client; and you and I have had this, Todd, where your client just sounds so reasonable, and they sound very believable, but they just have trouble getting things together. And then you walk into this mediation, you've never met the opposing party before, but they're very put together, they're very organized, they have all their evidence together, and you're sitting there going, "Oh, my gosh. I don't think we're going to do well in court," even though as the lawyer you've done everything you can, but your client's not well-prepared. It has a psychological impact on the mediator, the opposing party, and the opposing lawyer.

Todd Orston: Yeah. And we've talked about this also in the context of trial. I mean you're right, preparation is key; that's why that is the main focus of this show. If you walk in prepared, not only do you have the evidence to back up the positions you're taking, but you are 100% correct: the psychological impact. First of all, you are confident because you know you're ready. Then on top of that, that confidence is affecting the mediator and can potentially, and often does, affect the opposing party. Okay? If you're dealing with some narcissistic just controlling whatever, then however prepared you are may not have a huge impact on them.

Todd Orston: But trust me, even that person who thinks that they are God gift: if you walk in prepared, if they have always controlled let's say the finances, if they've controlled all the information and you walk in and you're still prepared, and when they make arguments you're ready or your attorney is ready to throw documents back at the mediator and go... not throw, we don't throw anything... but hand politely documents to the mediator, that can... And the mediator will ask, "Is it okay for me to share this with the other side?" All right? "Yes, absolutely," and they go back and they go into that room. I have heard, after the fact... you know, we're just talking to mediators, not in mediations I'm in... where they're like, "Look, we walk in and we present a whole bunch of evidence, it will... You can see the wind come out of that person's sails."

Todd Orston: That's what mediation's about, not about removing wind from sails: it's about keeping everyone honest, keeping them... Instead of all the posturing, and whatever, it's, "Listen, we're dealing with child support. Let's deal with this. We're dealing with alimony. Let's figure that out. We're dealing with custody. Well, let's not lose sight of the kids and their needs." But if you're sitting here and you're saying, "I'm the best parent and I should be the primary," all right, but they came in with a whole bunch of documents that say you haven't even met the doctor, you've never been to an extracurricular event, and you've never... " da-da-da-da-da, "So how can you sit here and say... And what do you think is going to happen when you walk into court and this kind of evidence gets presented?" Now, all of a sudden, you've taken a lot of wind out of their sails and they may be more willing to settle.

Leh Meriwether: Let's get practical for a minute. There's four core areas in a divorce case, depending on if you have children or not, but you have child custody, child support, alimony, and the equitable division of assets, or your division of assets and liabilities. It's equitable division that's the mechanism here in Georgia, every state has a different mechanism, so you need to be prepared at all four levels.

Leh Meriwether: We already mentioned how you prepare for equitable division by doing a marital balance sheet, breaking down your assets and liabilities on Excel spreadsheet. If you want, you can even include your first offer on there. And so I have done mediations where I show up, and in our opening statement I share with the opposing side and the mediator a marital balance sheet. I don't have anything laid out like what we want. It's always a strategy call if I always make our first offer that way.

Leh Meriwether: But you know you've done a great job when you walk in there and you've got everything on one sheet of paper, you spend maybe 60, 120 seconds breaking down what it is, and maybe you say, "Hey, we really want... We're looking for roughly a 50:50. We're not too concerned about the mechanism of how we achieve the 50:50. That's what we're looking for," and I've had opposing council look at it and go, "Yeah. We don't even need to make an opening statement. We totally agree with these numbers. Let's start caucusing and reach an agreement." That's the advantage of being prepared also and being in a neutral... like in a neutral way, not deceptive. You want to be very open about all the assets, liabilities. Don't be hiding anything, not to mention it's not proper and your mediation agreement can be overturned if you fraudulently withheld something in mediation. So marital balance sheet.

Leh Meriwether: If you have child custody, you come in there with a parenting plan. Start off, "Here's what we'd really like to see." Literally, I like to type up my parenting plan ahead of time so we're working from the same thing. And then child support, that's usually straightforward. If you're a W2 employee, you have your W2s with you, your tax returns, and you do child support worksheets before you ever walk in there.

Leh Meriwether: And then on alimony, Todd's already laid out how you prepare for that. You get together the basis for which you are asking for alimony, by doing your domestic relations financial affidavit ahead of time, and you lay out where you're short, and that explains why you need the money, and often... And that's where you may start off higher, knowing that you're going to have to give some. We're going to have to have a whole show on negotiation techniques, but I think that's a pretty good... That's the practical things you need to do in the four core areas to be properly prepared for mediation.

Todd Orston: Yeah. And let me tell you one way that I don't... I question when people use mediation in this way: where they don't have attorneys, they don't know how to prepare, but they say, "Look, we don't want to fight so we're going to go straight to mediation." And you touched on this, and I thought that maybe we end with this point, because let me explain why this is not... I'm being very sincere here. This is not an attorney saying, "Don't do that because you need to hire an attorney and give an attorney money." That's not what I'm saying. But mediators oftentimes are not attorneys; and even if they are an attorney, they're not your attorney. Their job, the mediator's job, is not to completely educate you and analyze all the four core issues and the impact on the parties; that's not their job.

Todd Orston: And so the concern, and we have seen where this has unfortunately been a reality, is you go in, you're not prepared, you have someone there you are relying on improperly because you feel that it's their job to educate you and make sure you guys are reaching a good, solid, fair, reasonable agreement, but that's not what they're doing. They are basically just figuring out, "Oh, you want custody? Okay. Well, let's put these terms in. Oh, alimony? Okay. Well, how about this number?" and they have not done any level of deep dive. And so when you walk out, there's a much greater chance that... Yeah, you have an agreement. Absolutely check the box. Yes, you've avoided litigation. Yeah, check the box. Is it a fair, good, reasonable agreement? I don't believe you can check that box. And we've had too many people come to us after the fact saying, "I entered into this agreement, but now I see the impact. Can I change it?" and oftentimes our answer is no.

Leh Meriwether: You know what the irony is? In a lot of those cases, Todd, when the parties walk out of the mediation they're both actually happy because they feel like they avoided something.

Todd Orston: Yeah. That's right.

Leh Meriwether: But it's not a great... I'm not saying every time, but in many cases they find out later, like you said, that it's not a great agreement and it's put them in a horrible spot.

Leh Meriwether: Hey, everyone. Unfortunately, we've run out of time, but I hope you've gained something from our discussion about mediation, and you're able to use it to settle your case.

Leh Meriwether: Thanks so much for listening.