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Episode 127 - 5 Alternative Ways to Resolve Your Divorce Without a Public Trial

Episode 127 - 5 Alternative Ways to Resolve Your Divorce Without a Public Trial Image

06/27/2019 12:22 pm

As the number of family law cases continued to slow down our Court system, lawyers and our Court system has been working hard at developing alternative forms of dispute resolution. Many counties in many states now have ADR (Alternative Dispute Resolution) offices. In this show, Leh and Todd break down five (5) alternative ways to resolve your divorce without a public trial. Tune in to learn more about Settlement Conferences, Mediation, Late Care Evaluations, Judicially Hosted Settlement Conferences, and Arbitration.


Leh Meriwether: Welcome everyone, I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp, and you're listening too the Meriwether and 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 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

Todd Orston: Oh, you almost...

Leh Meriwether: I almost flubbed it.

Todd Orston: Ah, all right. So Atlanta divorce team. Got it.

Leh Meriwether: Got it now.

Todd Orston: All right well, we'll practice off air. That's fine.

Leh Meriwether: I didn't have any smarties, I'll take it. I need smarties next time we get-

Todd Orston: Oh, I'm feeling smart right now. The sugar is coursing through my veins. Well, we're not here to talk about that, so what are we going to discuss today?

Leh Meriwether: Well, I thought you were going to tell me that?

Todd Orston: Okay. Let me tell you Leh what we're going to discuss today, today we are going to discuss what is commonly referred to as Methods of ADR.

Leh Meriwether: Is that like a different way of saying rock, paper, scissors?

Todd Orston: Yeah. Alterative Dispute Resolution.

Leh Meriwether: Okay.

Todd Orston: I have won quite a few cases with thumb war-

Leh Meriwether: Okay, thumb wrestling.

Todd Orston: ... and rock, paper, scissors. Yeah, so no. Alternative Dispute Resolution. Everyone who's listening probably knows that in a divorce case, or other family law case if you can't reach an agreement then unfortunately you may land in front of a judge. You might have to have a hearing or a trial, but to get to that point there are other things that you can consider. Other methods to try and reach an agreement, and avoid litigation, avoid a trial. Those things are called Methods of Alternative Dispute Resolution. Commonly referred to as ADR. If you ever, you know, if you're in a certain country, and it's that county, let's say DeKalb county. DeKalb ADR. Kalb ADR. That's what we're talking about, or that's what that means.

Todd Orston: It means that, that is the department that is in charge of organizing these other forms of dispute resolution that can hopefully keep you out of court.

Leh Meriwether: Today we're going to talk about, we're going to touch on all the different options because most people, when we've talked on the show about mediation, but there are other options out there. We're going to go into those different options, make sure you understand what's available to you. Now, every county may be a little bit different, but in every state maybe a little bit different, but for the most part these things are the same.

Todd Orston: Yeah. They're the same, in other words it's all trying to accomplish the same goal. The same goal being unfortunately you are in this case. You're dealing with this matter, and you want to avoid prolonged, expensive litigation. To do that you need to reach an agreement, but sometimes reaching an agreement is not easy. Sometimes, are you done yet? I mean, for the listeners I'm watching him past five minutes he's been moving his microphone.

Leh Meriwether: Sorry.

Todd Orston: Oh good, are you comfortable?

Leh Meriwether: I'm comfortable now.

Todd Orston: Because I want you to be comfortable Leh.

Leh Meriwether: I'm comfortable now.

Todd Orston: All right, good.

Leh Meriwether: Sorry.

Todd Orston: No, it's quite all right. It really wasn't bothering me, but the listeners they, they... so, look the bottom line is these are methods that are sometimes commonly, sometimes not commonly used to reach an agreement, and avoid costly litigation. Like Leh was saying, we're going to go through these. We're going to explain them because they really are beneficial, and they are, when I say beneficial they often times result in agreements. And so understanding what your options are it's only going to help you make better decisions if you're going through a divorce, or dealing with a family law case.

Todd Orston: We're going to go through those options so that you are more educated, and can make good decisions for yourself.

Leh Meriwether: Yup, and the ones we're going to go through are an informal settlement conference, mediation, judicially hosted settlement conference, late case evaluation, and arbitration. We're going to break down each one, the pros and cons. What's involved in each one, and so that way you have a good understanding of what's available to you, and which option you may want to pick.

Todd Orston: All right, so before we get into some specifics about each of those let's just talk generally. Okay. We've already touched on why ADR is a beneficial tool, right. It can turn what might be a ten month, 12 month litigation process into one or two or three months, and that saves you a bunch of time, bunch of heart ache, and a bunch of money. But let's talk generally, what's needed to make an ADR attempt, you know, to make it successful?

Leh Meriwether: Well there's a few things. First thing is to make sure you've got all your information needed to settle. The good data, and we can talk a little bit about that later, but showing up to mediation not sure or whatever form of Alternative Dispute Resolution you're using. Showing up without good information is going to result in a failed attempt to mediate, or settle your case.

Todd Orston: Or at the very least, you might not agree on something that's fair and reasonable for you.

Leh Meriwether: Right.

Todd Orston: In other words, you might go in, you might not be prepared, and you might still reach an agreement, but I can't count how many times someone went to mediation or engage in some other kind of ADR method, and then all of a sudden they're knocking on our door saying, "I really don't like this agreement." And we start looking at it, and it's like, "Well, yeah. You don't like it because it's really unfair." You know, unfortunately though once that happens, you've gone through the process, you go to mediation let's say. It gets adopted into an agreement. The agreement gets adopted into a final order. You're done.

Leh Meriwether: Yeah. You're stuck with it.

Todd Orston: Right. So you want to be prepared, and the first step is to gather that data. Have that information, because without the information you can not make good decisions for yourself.

Leh Meriwether: And your example, I think what I've seen the most is someone doesn't have a good handle on their budget. On their monthly budget.

Todd Orston: That's right.

Leh Meriwether: You know, on one end, "Well, I agreed to this much alimony, but you know, I didn't realize I had all these other expense, or I didn't think, I didn't realize I was going to have to pay for my health care after the divorce." That is the kind of information you need gather up from, before you walk into any form of ADR.

Leh Meriwether: All right, so the other thing you need is an organization of your evidence. There's four core areas in a divorce particularly. You've got child custody, child support, alimony and equitable divisions. If there's issues where you're disputing things, maybe you're fighting over who should have what parenting time, and you've got a good reason why you should have more parenting time than the other, and you've got some evidence to support that. Well bring that with you to the mediation, because, or arbitration, or judicially hosted settlement conference. We're going to get into what those different ones are, but bring that evidence with you, and have it nice and succinct, and organized so you can share it with the other side through whatever persons there. Whether it's a judge or it's a mediator, or an arbitrator.

Todd Orston: Yeah, I mean there are times that we will actually put together a mediation booklet, you know, basically a loose leaf if you will, filled with the evidence that we can hand, not only to opposing counsel, but to the mediator, and say, "Okay, these are the issues. This is what our position is going to be on each one of the issues. Here's some supporting evidence that we would intend to use if we had to go to trial."

Todd Orston: Again, if you have that level of organization it becomes very hard for the other side to just make a blanket rejection or refusal to accept a term.

Leh Meriwether: Probably the clearest example is, because most cases have a house involved. Is having an appraisal of the house, because you come in, say, "All right, I've had it appraised. Here's what it's worth." It's kind of hard to reject that. I mean-

Todd Orston: Right.

Leh Meriwether: ... you may say, "I think the appraisers off." But, unless you've got your own appraisal, or the other person has an appraisal it's going to be hard for them to reject that number. It's going to be hard for them to get upset with you for that number.

Todd Orston: That's right, and let's use your other example of alimony. If you go in and you say, "I want $12,000 a month in alimony for X number of years." And you have nothing to support that number, because alimony in Georgia is need based. You go into a mediation and say, "I want $12,000." Well, that's wonderful. I want a Ferrari. Okay, and I'm not going to get the car, you're not going to get $12,000, but if you go in and you are prepared, and you have a full budget that takes into a count not just the big expenses that most people think about. I have a rent or a mortgage. I have a car payment. I have car insurance. They don't think about, you know, just, "I have some uncovered medical expenses. I have some activity expenses. Oh, I want every once in a while to see a movie."

Leh Meriwether: Right.

Todd Orston: Just the little things that start to add up. Then all of a sudden you go in and you're like, "Here's my budget. There's a short fall of $12,000. You'll see I don't have a lot of fluff in there. This is why I need $12,000." Then all of the pressure is on the other paying, potentially paying spouse, because it's like, look prove why this is unreasonable.

Leh Meriwether: I think cases where a request for $12,000 a month in alimony was a reasonable request based on the information that was available to the party, and that was presented, in this case it was in mediation. It was really hard to argue with it, because they just didn't come in saying, "Well, I want $12,000 just because I want it." They said, "No, I need it and here's why." One of the other things was emotional control, that's an important part of a mediation, and sometimes you have to get yourself mentally ready to go to an Alternative Dispute Resolution forum.

Leh Meriwether: I'm focusing, I'm using the word ADR because, you know, the next show we actually have someone coming to us, a mediator, who we're going to take a deep dive on just mediations themselves. When you're better prepared it helps with the emotional control.

Todd Orston: Yeah, and also very quickly. You have to go in with good faith intent. If you go in, and you don't want to act in good faith, and negotiate in good faith it's a waste of time. Okay. You have to go in wanting to settle. If you do that you're going to be in a good position to settle.

Leh Meriwether: Up next we're going to talk about, we're going take a deeper dive in all the different forms of ADR.

Leh Meriwether: Welcome back everyone, I'm Leh Meriwether, and with me is Todd Orston. If you want to read more about us you can always check us out online at Well, I'm diving right in to the Meriwether and Tharp show, because we've got a lot of material to cover. We didn't even finish hitting all points we wanted to hit in the last segment. Where we left off was-

Todd Orston: Good faith.

Leh Meriwether: ... good faith.

Todd Orston: Yeah, you got go into the process with an open mind, and a desire, a good faith want to settle. If you go in, and you're playing games. If you go and you're not being completely honest about things, then unfortunately, statistically speaking you're doomed to fail. Meaning the process is doomed to fail, but if you go in open mind with a willingness to negotiate, and engage in good faith, and negotiate fairly then you're going to be in a very good position to settle. Most cases settle.

Leh Meriwether: Yup.

Todd Orston: If that weren't the case, if that weren't true our legal system as we know it would shut down. It would grind to a halt if ever single case had to be tried. There's no way our system with the current resources that is has would be able to survive.

Leh Meriwether: Yeah, 80 to %90 of cases settle before they ever go for final hearing.

Todd Orston: Right. If you go into a divorce case thinking that the ultimate goal, and the way you're going to resolve it is through trial then you're mistaken. You actually need to start the divorce case thinking, "Okay, at some point I'm going to be sitting across a table trying to negotiate an agreement." Either with the help of a mediator or not or whatever, but you need to be actually thinking initially, "How am I going to prepare for mediation?" Not, "How am I going be preparing for a trial?"

Leh Meriwether: I think it's important to note that in many counties there's mandatory ADR.

Todd Orston: That's right.

Leh Meriwether: In this situation it's mediation, but you can't even get to that final hearing. You can't even schedule a final hearing without having mediated first in many counties. They won't even let you put it on the calendar.

Todd Orston: Yeah.

Leh Meriwether: There have been a few cases where, because the other side there was all kinds of issues. We had to file a special motion with the court to ask for that mandatory requirement to be taken off, and often those will deal with someone that's, perhaps you got someone who's got issues with family violence, and they're serious. There's been threats, and you don't want to get those people under the same roof unless there's Sheriff's deputies present.

Todd Orston: Yeah, and we're going to go into that especially in the next show where we talk about mediation, and we'll get into what's called separate caucusing, and we'll get into some of those safety concerns and things like that. That, you know, will allow you to mediate even when there are security concerns, and other issues that would prevent you from being in the same room, let alone the same building.

Leh Meriwether: Right.

Todd Orston: All right, now that we've done that let's jump in. Let's start talking about the different types of ADR, all right.

Leh Meriwether: Yup.

Todd Orston: And you had already gone in to it, and the first one that you had mentioned was informal settlement conferences, okay, what is that?

Leh Meriwether: It's something that can, you know, first off I think can occur just between the parties. Where two parties get together and they try to work through their thing, and settle it. That often breaks down because of emotion, and there's not a third party sort of to filter things, to work through. Sometimes you can have it with the lawyers. If you have two layers that really get along well, that know each other well, that know how the court rules in certain cases. You can get together, and this often happens in the court house where the parties through the lawyers, negotiate a deal. Sometimes it may just be a temporary arrangement for the rest of the course of the case. Sometimes it can be a final.

Leh Meriwether: I even had one lawyer that we got along great. We knew, we both knew how that judge was going to rule, and it was funny, she made a comment that, "If we don't, we're both committing malpractice." It was a joke, but, "But we're both committing malpractice if we can't get our clients to settle."

Todd Orston: Yeah, because you both knew what the outcome was.

Leh Meriwether: Yup.

Todd Orston: Big neon letters on the wall. You know what the outcome is, and so it was your job at that point not to fight for something other than that. It was basically your job to educate the client, and make sure they understood that this is pretty much what the judge is going to do.

Leh Meriwether: Yeah, and the interesting thing in that was on one end of the spectrum her client had an unreasonable position, and she knew it. She knew the judge wasn't going to give her what she was asking for, and then on my, on our end our client had a taken a similar position on a different matter. We both knew that we were going to lose on those two issues, and that was all that was keeping us from settling. Sometimes this informal process can involve, and this is separate from a judicially hosted settlement conference, but sometimes at court, you can go to court and the judge will say, "Well, I'll have a pre-trial conference with you." And so the parties, in fact you and I have done that before when we-

Todd Orston: Many times.

Leh Meriwether: ... when we were on opposing-

Todd Orston: On opposing sides, right.

Leh Meriwether: ... sides, and so we'd go and say, "Judge, we have worked, really worked out most of the issues but we've got a sticking point." And the lawyers are going there, I think it's important to share this, because a lot of people feel like some games are being played.

Todd Orston: Yup.

Leh Meriwether: Games aren't being played. We're able to really taken the emotion out and lay out, "Judge, here's the facts, and here's the law, what do you think?" And-

Todd Orston: You know, I'm glad you brought that up because there's often times frustration. Where these things, these meetings with the judge happen outside the presence of the parties, and then the attorney's comes out and they're like, "Okay. Let me tell you what I think we need to do."

Leh Meriwether: Right.

Todd Orston: Okay. Then there's a level of frustration, "I didn't get my day in court. I didn't get to, you know, explain my side of things." Okay. What listeners need to understand, what you need to understand is that when your attorney goes back, if you have trust in your attorney then trust that they are going back there, and they are litigating on your behalf. They are presenting all of the important facts. I have had pre-trial conferences that lasted an hour and a half.

Leh Meriwether: Wow.

Todd Orston: It was basically a mini trial where I went back there, and I presented everything, and... let me put it differently. I explained what I expected I would be presenting at the hearing.

Leh Meriwether: Right.

Todd Orston: But I went into so much detail it was basically like absent my client, we had a trial, and at the end of it the court said, "All right, you guys, you can have your day in court. This is what I'm thinking I would do based on these facts." And then I come out, and I have to explain it to a client, and sometimes that can be frustrating because it's like, "Well, I don't know what happened."

Leh Meriwether: Right.

Todd Orston: You have to understand I have also avoided catastrophes for clients because I went, had a pre-trial conference with the judge and found out that if we had a hearing, and the facts were presented that are, you know, were the facts in the case, the ruling against my client would horrible.

Leh Meriwether: I think that was a case you had with me.

Todd Orston: I think that might have been, you know, where the court was like, "I'm telling you I may change custody based on these facts." And then I would come out and say, "I don't think we need a hearing." As a matter of fact-

Leh Meriwether: Right, this wasn't our case. No, our case, they said something else.

Todd Orston: ... yeah, let, no. The one I'm thinking about it was not you, and it was basically, there was some pretty bad facts and I came out, and I was able to educate my client and say, "You can have your day in court, and I'm ready, okay, but these facts are not resonating well with the court, and I am fearful that this is what, you know, could possibly happen." And my client made a good decision there, and kept custody and we moved on with the case.

Leh Meriwether: Right.

Todd Orston: But anyway, all right so the good thing about these informal settlement conferences they can happen any time. They can happen anywhere, and there's no cost. I mean, you could do it-

Leh Meriwether: Apart from paying your lawyers.

Todd Orston: ... at a Starbucks. Right, if you want your attorneys there-

Leh Meriwether: Right.

Todd Orston: ... or if you're using your attorneys to prepare yourself of course there's a cost there. Other than that there's no cost. Now the cons are again, if you don't do the right preparation. If you go into that meeting and you are not prepared because you haven't done the background work, you haven't done any of the discovery that you need to do. You haven't established a budget. Then unfortunately you're sort of, your hands are tied behind your back. You're, whatever you want to say, you're not prepared for that meeting, and at the very least you're going to leave with an agreement that really isn't beneficial to you.

Leh Meriwether: Right. Now there's some situations where, like I may have one coming up here soon where there's very little money to go around, and the client has hired me, the other side can't afford a lawyer, so we may do an informal settlement conference. All sit down in the room, and work through stuff, and the client in those situations I usually let the client know, "Hey, I'm working here. I represent you, I'm your advocate, but right now I'm working on how can we resolve this. So I may say something that gets you upset, if it does pull me out of the room, and we'll talk about it."

Todd Orston: At all times you are representing one party-

Leh Meriwether: Right.

Todd Orston: ... you don't represent both, and you'll be very clear with the other party, "I do not represent you." What I sometimes say in those situations, because I've been in that situation is, "I don't have my litigation hat on right now."

Leh Meriwether: Yup.

Todd Orston: "I do not represent you. If you have questions you need to stop this, and hire an attorney, and go get your questions answered. I can't give you advice, but I'm not here to take advantage of you. I'm not here to trick you. I'm here to try and reach, have you guys reach an agreement."

Leh Meriwether: Right, and so sometimes you facilitate. Sometimes somebody will suggest something, you know like, "Look, I hear what you're saying, but that's, I don't think that's going to work because it's been my experience that proposal won't work here, other problems with it." Or you've had situations where you know a judge won't accept a certain type of parenting plan, and you're like, "I hear that's what you want to do, but it's going to get rejected by the judge so we need to work on something else."

Leh Meriwether: So that's advantageous, and in that situation there's only one attorney involved, like you said, they're only representing one party and those situations where we've had that. I've had to be very, very clear, and probably say it a hundred times the other person probably got tired of me saying it. I don't represent you, can't give you legal advice.

Todd Orston: I'll usually have the other party sign a document that acknowledges their understanding that I do not represent them. That way we're all on the same page, and we can discuss things openly and honestly, and we are all hopefully working towards the same goal which is to avoid litigation, and reach an amicable agreement.

Leh Meriwether: Yeah, that everybody can work with and move on with their lives.

Todd Orston: That's right.

Leh Meriwether: That's one of the advantages, one of the big advantages of informal, and up next we're going to talk about mediation, and judicially hosted settlement conferences.

Leh Meriwether: Welcome back everyone, this is Leh and Todd and you're listening to the Meriwether and Tharp show. If you want to listen to past recordings or you missed something earlier you can always check us out online at You can read more a bout us at

Leh Meriwether: Well, today we're talking about ADR. Alternative Dispute Resolution forums, and there's multiple different types of ways to resolve your case. We're going through them, most people have heard about mediation, but we're talking about other forms of settlement possibilities. Ways to settle your case or even resolve your case, I mean sometimes it's not a settlement, that are, not everyone knows about.

Todd Orston: Yeah, and again to that point you can go to mediation and resolve %90 of the issues in your case. I mean, you know, you don't need to go into any of these methods of ADR thinking it's all or nothing.

Leh Meriwether: Right.

Todd Orston: Sometimes strategically it needs to be.

Leh Meriwether: Yes.

Todd Orston: Other times, and many times I've had cases where we were able to reach an agreement prior to trial, and I'm talking immediately prior to trial, and turn what would have been a five day trial including all four core area's. Custody, child support, alimony, division of property, and turned it into a day trial because I was able to negotiate a settlement on %90 of the pending issues.

Leh Meriwether: Right.

Todd Orston: You absolutely can into it thinking, "Okay, if I can't agree on custody, maybe I want to get all the property issues done, and then I'll turn my attention to the custody issues that we're not able to agree on."

Leh Meriwether: I'm done the same thing, and look, going back to your point on strategic issues, sometimes you're willing to comprise, "Hey, I'll compromise on this issue over here if you're willing to compromise on this issue over here." And they're like, "Well, I take your offer but I'm not compromising." And that's-

Todd Orston: Right.

Leh Meriwether: ... you're willing to give up something if they're willing to give up something in that situation, you've got to go to trial.

Todd Orston: Yeah, and sometimes strategically since we're talking about it, sometimes an all or nothing position, depending on who you're dealing with, is required to get them to move on everything.

Leh Meriwether: Right.

Todd Orston: In other words, if somebody comes in and goes, "Well, I want A, B, C." And your position is, "I want one, two, three." Obviously saying, "Okay, let's give you A, B, C, and I don't get any of my one, two, three, that's not reasonable." You maybe in a position where you're like, "Fine, I'll give you A, B, and C. We'll resolve those issues if you give me, and if we resolve one, two, three right now, but I'm not going to give you those things and then I'm going to spend the next six months fighting over the things that are important to me."

Leh Meriwether: Yeah, we should have a whole show just on sort of negotiations-

Todd Orston: Strategies.

Leh Meriwether: ... strategies.

Todd Orston: Yep. Absolutely.

Leh Meriwether: But we don't want to get into that today.

Todd Orston: Yeah.

Leh Meriwether: In fact we only want to touch on mediation because the next show we have someone coming on to talk about, the whole show-

Todd Orston: That's right.

Leh Meriwether: ... we're going to get into mediation itself. Dive a little bit deeper. What it takes to set yourself up for success at mediation, but-

Todd Orston: Right, so let's talk about mediation, and I think maybe a good approach is let's just deal with it in relation to something very similar, which is judicially hosted settlement conferences. Because at least, the way I look at it is there's not much difference between a mediation and a judicially hosted settlement conference. The only difference, and you can probably tell from the name, is that the mediation is a mediator often times not a judge.

Leh Meriwether: Right.

Todd Orston: A judicially hosted settlement conference is basically a mediation, but you are utilizing instead of just a mediator, and when I say just a mediation, by the way, you're a trained mediator, I'm a trained mediator. We're having a mediator come on shortly. We use mediators all the time. There are fantastic mediators out there.

Leh Meriwether: Right.

Todd Orston: Who are not judges, but a judicially hosted settlement conference is a mediation where you're using a, not a current sitting judge, usually it's a senior judge or a retired judge, and there are some definite benefits to doing that, even though I've already said there are great mediators. Having a judge who has tried these cases before, has dealt with hundreds of these types of cases, and dealt with these issues can sometimes be a real benefit. Even if it's not on the knowledge side, it can be a benefit just because, sometimes if the other party is one of those that doesn't want to listen, doesn't want to be reasonable. Having a judge sitting there looking, and saying, "I'm telling you right now, if you were in my court this is what I would do." Can be very powerful, and can sometimes push people, you know, move them out of neutral and get them moving towards and agreement.

Leh Meriwether: Right. I think we should take a moment just to, one of the biggest differences between a mediation, and a judicially hosted settlement conference, besides the fact that one has to have a judge, and the other one doesn't have to have a judge. Is that a mediator, they can't, both of them are supposed to be neutrals all right, but a mediator isn't supposed to insert their opinion. They can reality check, meaning they can question, "Do you really think the judge would accept something like that? Have you heard about any other cases like that, that the judge has had? What does your lawyer say about that?"

Leh Meriwether: A mediator can reality check, but they're not supposed to say, "If you go to court your losing." I'm telling you right now you can't say that.

Todd Orston: Right.

Leh Meriwether: A judicially hosted settlement conference, that means a judge is hosting it, and they typically act as a mediator until they hit a stalemate on something, and then they get it moving by inserting their opinion. "Well, if I, you know, I've heard both sides. Is there anything I haven't heard?" "No judge, you've heard everything." "All right, let me just tell you what I would do if I were hearing this case." And they'll go one step further, "I know the judge that's going to hear your case, he's a good friend of mine and I think he would actually agree with me on this, and so I think you should settle on this issue. If you take that position to court, not only do I think you're going to lose, I think you're opening yourself up to getting hit with attorney's fee's because that positions unreasonable."

Leh Meriwether: That's the big advantage of a judicially hosted settlement conference, is they can make those aggressive assertions, insert themselves to keep the settlement conference moving towards a settlement.

Todd Orston: Now I will say this, and we're going to go into more detail when we talk in the next show about mediations, but the choice of mediator is incredibly important. Just like the choice of judicial, you know, judicially hosted, you know, not mediator but the judge.

Leh Meriwether: Right.

Todd Orston: It's very important because with a mediator, to your point, they're some mediators who are... they are simply taking offers back and forth, and-

Leh Meriwether: Just a courier.

Todd Orston: ... they're a courier back and forth, and well if you look at them and you go, "Am I being unreasonable?" "Well I don't know, do you think you're being unreasonable? Well hold on, let me take that back to them." You know, and it's unfortunately for me as an attorney practicing in this field that's not very helpful for me, because I am, I find myself to be a reasonable person, and I can communicate with people. If all you're going to do is take my words, and walk four or five feet to the next room and deliver my words, then I should be able to just deliver those words myself.

Leh Meriwether: Right.

Todd Orston: I like mediators who are able to, ah, step over that line a little bit, but because I'm the attorney and I know how to control that, I'm not going to let it influence my client, you know, unfairly or unreasonably. You do need to ask good questions when you're going to hire a mediator because you want someone who's not just going to be the, you know, let me bring an offer back and forth, but somebody who will do and engage in reality testing, and checking, like you're talking about. Where its like, "Really, you want a %100 of assets. %100 of the custody time, and you want your spouse to be flogged in the town square every single day at noon." That's not going to happen. Okay.

Todd Orston: I've been doing this a long time, and it is very unlikely that kind of terminology will be included in any kind of an order. You want that person, as apposed to, "Okay, a public flogging. Let me go over there and see if they're open to public flogging." All right, that's not useful.

Leh Meriwether: Although I've never heard a mediator do that, also I'm sure there's a line that even they don't cross.

Todd Orston: All right, so maybe public flogging was a step to far, but you understand the point.

Leh Meriwether: Here's the big advantage of a mediator, one of the big pros of a mediator is that they're a buffer. Sometimes I've heard, I heard this fraise, reactive devaluation. The wife says, "You know what, I'd really like to keep this house. I mean, kids are growing up, been growing up here. They stay in the same school district." She tells her lawyer that, and then the husband tells the lawyer, "You know what, I think she should keep the house, and keep the kids, and you know, we need to figure out to pay for it, but I don't want the kids to leave the school district."

Leh Meriwether: The lawyer picks up the phone, calls the husband's lawyer, calls the wife's lawyer and says, "Hey, my client would like to suggest that she keep the home, we'll figure out how to pay for it, and that way the kids can stay there." And then, "Oh, that's good news, let me call my client because I think that's what she wants." The wife's lawyer calls her says, "Hey, good news. He wants you to stay in the home." "What! He can't tell me what to do. I don't want the home now." And I'm not trying to pick on the wife-

Todd Orston: No, no. Right.

Leh Meriwether: ... I've seen it from both...

Todd Orston: We've seen it both ways.

Leh Meriwether: Yeah, so because the offer came from the husband, even though that's what she actually wanted, she reacted and devalued the offer, and a mediator, a good mediator will say, "You know what-

Todd Orston: What about-

Leh Meriwether: ... I've been in that room, man there's a lot of anger in that room. Is it okay if that's my idea?"

Todd Orston: Yeah.

Leh Meriwether: They'll go in the other room and say, "I just thought of something. What if you did this."

Todd Orston: Yeah.

Leh Meriwether: The mediators a neutral so they don't devalue the-

Todd Orston: And it's not manipulation.

Leh Meriwether: No.

Todd Orston: Because they understand, especially in family law litigation that tensions run high, emotions run high, and sometimes they have tricks that they can use to deescalate, and to remove that emotional response, and yeah, "Hey, the house, do you want the house? Because if you want the house, let me talk to him or her. Let me talk to them and broach the subject." Then all of a sudden it's not come from the other party, and maybe that's what happens.

Leh Meriwether: Right. We're coming right back, and we're going to continue about mediations, and judicially hosted settlement conferences.

Leh Meriwether: Welcome back to the Meriwether and Tharp show, I'm Leh Meriwether and with me is Todd Orston. If you want to read more about us you can always check us out online Well today we've been talking about Alternative Dispute Resolution, or ADR. If you've ever been through the legal system you probably had to deal with, well should say the civil system, with a ADR office where you are. Most states, counties, and most states have an ADR office today, because, well the courts know how effective it is to use other forms to resolve disputes. Rather than in the court system, and to your point to what you said earlier Todd, if they did away with mediations, and judicially hosted settlement conference and everything, our judicial system would just-

Todd Orston: It would shut down.

Leh Meriwether: ... it would shut down.

Todd Orston: Yeah.

Leh Meriwether: Because you can't handle, that the judge can't handle that many cases.

Todd Orston: No, no, that's not true. That's not true. You would file your divorce, and they would say, "Okay, well we are setting you down for trial in 2312, because there's only one million cases ahead of you."

Leh Meriwether: Right.

Todd Orston: "Don't worry about, just be patient."

Leh Meriwether: Yup.

Todd Orston: "You might be dead by the time your case comes around, but..." Yeah, so it is a necessity.

Leh Meriwether: It is.

Todd Orston: But putting that aside, it's not that you're being forced into a process that's not beneficial.

Leh Meriwether: Right, it's very beneficial.

Todd Orston: It works, and so, and judges will tell you quite often they don't want to be making these decisions for you. By participating, other than arbitration, which we'll get to in a moment. By participating in these forms of ADR, you are still the master of your fate. You are still the Captain of the ship, you know, however you want to put it. You still have a say in what's happening, because it is by agreement. Okay, arbitration of course is like a trial, it's like a private trial, but all these other one's we've been talking about, you have the right to accept or not accept.

Leh Meriwether: Right.

Todd Orston: Okay, and so judges will often times tell you, "Listen, if you want me to decide parenting issues for you, okay, that's my job I'll do it, but you know what? I really shouldn't be making parenting decisions for you about your children. So why don't you go into the hall, go to a mediator, do something, and try and work it out yourselves, because then at least you are playing a part in the decision making on that issue."

Leh Meriwether: One of my favorite fraises from a judge one time is, "Hey, if I have to make the decision, it's like a surgeon doing surgery with a chainsaw."

Todd Orston: Yeah.

Leh Meriwether: "But if you're making the decision through mediation or something like that, it's like performing it with a scalpel."

Todd Orston: Yeah, I mean it's a horrible, horrible visual, but yeah I get the, I understand.

Leh Meriwether: I think that was the point, he was trying to get people to go out and settle issues.

Todd Orston: I'm a little nauseous right now, but okay. That's fine. All right.

Leh Meriwether: All right, so we were talking about judicially hosted settlement conferences, and mediations. We were kind of throwing them together, talking about the differences. Let's really quick go over what the pros and cons of both of them.

Todd Orston: Yeah, so very quickly, I mean the pros for a mediation, you're using a trained neutral. We call them third party neutrals to help get you over those hurdles, I mean if you are going to reach an agreement very quickly you don't need a mediator.

Leh Meriwether: Right.

Todd Orston: Can still be helpful to make sure you don't forget things, and you know, just to help through the process, but you know, the pros that you're using somebody who has been down this road before. Understands the issues, and if you make the right choice, understands the judge that you're in front of, and how that judge leans. Depending on who you use, the cost can be very low. In fact, there are some counties that offer, I don't know if there anymore, or I think they're some where you can get limited free services-

Leh Meriwether: Right.

Todd Orston: ... or at the very least, discounted services.

Leh Meriwether: Depends on where you live.

Todd Orston: That's right. You know, the con is that you're going in, if you are depending on that mediator to educate you, and get you organized, and that's not what their job is.

Leh Meriwether: Yup, and they can't give you legal advice either.

Todd Orston: That's right, and in terms of cost, both for a, well, a mediation you could, it's sort of like buying a car. You could buy the Yugo, that's, a lot of people will be like, "Are you... I don't know what you're talking about." You know-

Leh Meriwether: Oh boy.

Todd Orston: ... you could by the jalopy, or you could be the Ferrari.

Leh Meriwether: Right.

Todd Orston: I'm not saying all the jalopy's are bad, and the Ferrari's are fantastic, but point is they're mediators who are very cheep, and there are mediators where you are paying, literally, an hourly rate that is a very high hourly rate.

Leh Meriwether: $500 an hour.

Todd Orston: That's right, you know, and I'm not saying there are going to be benefits to each. Some of the counties, like I said, have free or semi-free services. You know, but the bottom line is the cost can run the gamete.

Leh Meriwether: Right. I've seen a lot of mediators, good ones, around $200 an hour.

Todd Orston: Right.

Leh Meriwether: At least where we are, in the Metro Atlanta area.

Todd Orston: And the judicially hosted, you can sometimes hire privately a judge, but a lot of the times they go through the county.

Leh Meriwether: Right.

Todd Orston: The county ADR, and there are set pricing, or is set pricing, and the pricing is reasonable.

Leh Meriwether: Yeah.

Todd Orston: Okay, specially when you consider what you're getting for that price.

Leh Meriwether: Sometimes a bit more than a mediator, but reasonable.

Todd Orston: Right.

Leh Meriwether: All right, so those are sort of the, we talked about some of the pros and cons, but let's talk about late case evaluation. Now, just like a lot of people don't know about judicially hosted settlement conferences, a lot of people don't know about late case evaluations. In fact, I used to use late case evaluations a lot before there was judges that started actually doing these judicially hosted settlement conferences. At least from my perspective, that's a fairly new thing. When I say new, in the last ten years, the judicially hosted settlement conferences.

Leh Meriwether: I think it's a great thing, because a lot of the time I'll do a mediation that fails, and then we go right to the judicially hosted settlement conference. Not right to, but like several months later, and it settles there.

Todd Orston: What's the, what aspect of it is similar to the judicially hosted settlement conference?

Leh Meriwether: The biggest similarity is that the late case evaluator is not a mediator. In meaning, they can give their opinion.

Todd Orston: In a pure sense, right, in the purse sense of the word ferrying offers back and forth.

Leh Meriwether: Right.

Todd Orston: You were talking earlier that a judge will say, "Hey, I've tried to ferry back and forth, let me tell you my thoughts."

Leh Meriwether: Right.

Todd Orston: "Let me give you my thoughts on how a judge, especially this judge that I might know, will rule on this issue or that issue."

Leh Meriwether: The late case evaluator, they're a to evaluate the case, and, but that's their title. That's what you're there for, but it's been my experience with them that at least in the county there was a reduced fee. So like Fulton county here in Atlanta, is one that was doing them. They had to have at least 15 years experience. Particularly in that county, so they knew the judges well, and you would go and meet with them and they would act like a mediator. They weren't a mediator, but they were acting like a mediator. They were trying to settle, and then just like the judicially hosted settlements conferences, they would push. "Hey, you know, I hear you on this. I understand how painful that is, but you know, I had a case like this in front of your judge two weeks ago, and they didn't buy that argument, and I don't think they'll buy it this time either."

Todd Orston: Right. So this person in a late case evaluation, the evaluators going to take it a step farther, like the judge that we were talking about earlier, and basically do some real deep intense reality testing based on experience, based on knowledge and all that. Where they can look at you and they can say, "Listen, what you're fighting for, I'm just telling you right now I think that you have a very low probability of getting it."

Leh Meriwether: Yeah, and it's been, now to the cons of late case evaluation, it's been my experience there are, they are more expensive. You are often getting the very expensive, specially in domestic law. I mean, they're three, $400 an hour sometimes, they can be expensive. But the advantage is, I mean, I've, there haven't been to many times that I, that didn't work in solving the case. Resolving the case I mean.

Todd Orston: Well, keep in mind you are always balancing that cost against the cost of preparing for, and going to a final trial.

Leh Meriwether: Right.

Todd Orston: And if you have a lot of issues, and you're dealing with custody, you're dealing with property division, all of that. Then the cost can be far higher if you don't settle.

Leh Meriwether: I think, and we're going to hit the last one in just a second. We only have a couple minutes left, but I think you hit one of the biggest differences between going to court, and mediation, apart from what we said, but in a cost factor, all these are informal. You don't, you're not worried about the rules of evidence. You're not worried about any, introducing exhibits. I mean, you need to be prepared like we talked about in the beginning, but it's a very informal process, and the preparation on that end, the formality, there isn't any. The formality of presenting your case. When you go to court your dealing with the rules of evidence. You're dealing with a procedure, so that adds a tremendous amount to the cost, and then plus you're putting your future in the hands of someone you don't know. Now the last one is arbitration.

Todd Orston: It's private judges.

Leh Meriwether: Right.

Todd Orston: You are hiring someone to act as a judge. When you watch TV, and you see the people's court, or you see all these people going in front of judges, and they're calling themselves judges. I'm not saying that they're not really judges, but in fact they're arbitrators.

Leh Meriwether: Yup. I'm pretty sure that you sign an arbitration agreement when go in front-

Todd Orston: Got it.

Leh Meriwether: ... of those judges. I was actually in court one time, this was years ago, and there was two cases in front of me, and the attorney announced that the cases had been transferred to, I don't know if it was a Whopner, or one of those old-

Todd Orston: Right.

Leh Meriwether: ... and so-

Todd Orston: I think you just aged your self.

Leh Meriwether: ... like, "Hey, those are off the calendar. The parties have agreed to arbitrate in front of Judge Whopner." Or something, so it is an abirritation process.

Todd Orston: So here's the thing, because I know we're out of time, we're almost out of time. Arbitration can be fantastic, if you get the right arbitrator who understands, you know, family law. You don't want to get somebody who knows, you know, aerospace law.

Leh Meriwether: Yeah.

Todd Orston: To try and deal with a divorce, but it's going to be more costly because you are hiring, a judge is free-

Leh Meriwether: Right.

Todd Orston: ... okay, an arbitrator's not. You're paying for their time, but you do get the same ability to have a final resolution.

Leh Meriwether: Right, on your schedule.

Todd Orston: On your schedule, that's the other thing.

Leh Meriwether: That's the big thing.

Todd Orston: That's right.

Leh Meriwether: Because you're on, when you're on the judges calendar-

Todd Orston: It can be six months before you have a final trial, but you could just arrange for arbitration to weeks from now.

Leh Meriwether: Yup. I wish we could arrange to have more time, but unfortunately we're out of time. Everyone, thanks so much for listening. If you're enjoying this show, and you want to post a review where you might be hearing it, go check us out at

Leh Meriwether: Thanks so much for listening.