Will Mediation Work for Me?

Speaker 1 (00:07):

Welcome everyone to Divorce Team Radio, sponsored by the divorce and family law firm of Meriwether and Tharp. I'm your host, Todd Orton, and here you're going to 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, you want to read more about us, you can check us out online@atlantadivorceteam.com. Alright, let's get started. So today I want to talk at length about something we've mentioned many times. It is an integral part of the divorce process, at least here in Georgia and I know it is a tool that is used nationwide. Alright, here in Georgia, there are many courts that actually will require what we're going to talk about before matters can be put on the calendar for temporary hearings or even final trials. We're talking about mediation.

(01:11):

It is such a great tool that people can use to try and avoid prolonged litigation and deal with the issues in their case in a way where you have a voice, you can go in, try and reach an agreement with the use of a mediator. It's a form of what's called alternative dispute resolution. And if you can reach that agreement, then great, then no more litigation is necessary. So we've talked about mediation, but I want to do a deep dive. I want this to be something where if you are going through it or someone you know is going through a divorce or any kind of a family law matter and mediation is on the calendar, then hopefully this is going to give you some ideas about the process, about mediation, about what you need to do to prepare things, you should think about things you shouldn't do, all of that.

(02:22):

Alright, so let's jump in. First of all, again, mediation. It's a form of alternative dispute resolution. Think about it, alternative dispute resolution. It's an alternative to litigation. So how does it work? And I'm a trained mediator. In the years that I've been practicing, I have attended on behalf of clients, I've attended countless mediations. It is not something where it's like, well maybe we'll try it. No, it is truly here in Georgia. It is truly a very, very commonly used tool. So what it is for those of you who don't know exactly, it is a process where you can go and sit with what's called a third party neutral.

(03:29):

That simply means they are not on the side of one party or the other. They're completely neutral. Their only goal is to try and help facilitate settlement. They will listen to one side, they'll listen to the other, they'll gather information, they'll problem solve reality tasks, do all sorts of things, use all sorts of tools with one goal in mind. Let's see if we can get the parties to reach an agreement, a consensus on whatever the sticking points are. Custody issues, child support, alimony, division of property and debt, whatever the issues are, whatever the sticking points are, that mediator is going to use tools to try and help facilitate communication and hopefully an agreement. And they do so in a very neutral way. They have to. Would you go to mediation if you thought, well, the mediator once worked with the other party or has some kind of a relationship with the other party?

(04:42):

No, you wouldn't feel like you're going to get a fair shake even though it's not a binding kind of thing. Still, why am I going to waste? I mean I've been in mediations that lasted 10, 11, 12, 13 hours, but why would I waste one hour if I thought the deck was stacked against me? So you don't have to worry about that. You do have to pick the right mediator. We'll go into that later, but you don't have to worry about them being biased against you or on the other side, they are trained and they come in completely blind as to your matter. They will sit down, they don't know your case, they haven't looked anything up, they haven't spoken with anybody, or at least that's the way it's supposed to be. And they come in and they engage with the parties and all they're trying to do is listen, figure out what the friction points are and get parties to an agreement.

(05:54):

So what are some of the general benefits of mediation? Well, some of them are pretty obvious. Cost. If you go to mediation and you reach an agreement, that means the case is done. I mean, you have to maybe prepare some final documents. Oftentimes what you reach or the document you prepare at mediation is something we call just a mediated agreement. Oftentimes that is not the full fleshed out settlement agreement. Sometimes it's if it's just a memo of understanding that is signed, it's still binding. And actually if you enter into that with the thought that you're going to flesh out a full settlement agreement and the other party hems, haws won't agree, won't work with you to finalize the document here in Georgia, a tool we would use is a motion to enforce. You can look to the court and say, Hey, we have a pretty fleshed out mediated agreement. Can you make this the final order? Can you issue a final order and have it adopt this mediated agreement?

(07:12):

So the benefit, a benefit is cost. You're going to spend a lot less money because you settled sooner. Timing. Another benefit, that one obviously if in month two or three you prepare the way you're supposed to prepare, go to mediation, reach an agreement, great case is done. And a case that could have lasted five months, eight months, 10 months, 12 months in month two or three, you settled. Two or three is usually pretty early to get into mediation, but it does sometimes happen. It just depends on the issues and how quickly the parties can help attorneys prepare so that you can make the most of that mediation session. You have more control over the terms that you reach. A judge didn't decide your fate, that's a benefit. Judges will even tell you, Hey, go out in the hall. Or some courts actually have mediators waiting in the wings.

(08:26):

Fulton County, Atlanta, they will oftentimes have a mediator just sort of waiting and they will try to push people and say, well, why don't you go talk to the meter, see if you can't iron out some issues. But judges will even tell you if you reach an agreement, then I don't have to decide these things. Do you really want this person in a robe with a gavel who doesn't know your family to make decisions about your kids or make decisions or do you want to try and do something where you have control over the outcome? So that's a benefit. Another benefit, it's confidential.

(09:06):

You can go in, there's no chilling effect like, well, I don't want to say certain things, it can be used against me, it can't. What happens there, it's like Vegas. What happens in mediation stays in mediation with very, very, very few limitations. That is the case. So what you do say how you negotiate, that's not going to be used against you If you don't reach an agreement that leads to the next one. It can't be used against you in future litigation and the other benefit, you can reach a binding agreement. It's such a fantastic tool. Because of that, you can go to mediation, iron out all the details and hopefully walk away with a signed agreement in which case you're done. At least the heavy lifting has been done. You have the agreement, the terms, you may still need to prepare a whole bunch of other documents that reflect the terms in the mediated agreement, but okay, that's fine. That doesn't require a negotiation. That just means it's a wordsmithing issue. Saves a lot of time, a lot of money, a lot of heartache. We're not even going to go into the benefits on the emotional side, but there are a lot. When we come back, let's talk about and explore. Are there any disadvantages to mediation? We'll be right back.

Speaker 2 (10:43):

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

Speaker 1 (10:54):

Better than like counting sheep, I guess, right? That's right. You can turn on the show and we'll help you fall asleep.

Speaker 2 (11:01):

There you go. I'll talk

Speaker 1 (11:02):

Very soft.

(11:05):

Welcome back everyone to Divorce Team Radio, a show sponsored by the Divorce and family Law firm of Merriwether and Tharp. I'm your host, Todd Weston, and if you want to read more about us, check us out online@atlantadivorceteam.com or if you want to read a transcript of this show or others or go back and listen to this or other shows, again, you can find them@divorceteamradio.com. So today we're doing a deep dive into mediation, a form of alternative dispute resolution that is commonly used in divorce and family law cases, at least here in Georgia. But I can tell you right now, I've spoken with colleagues in other states, some more than others, but I will tell you it is a very, very, very common tool. And I say that because sometimes people will say, well, do I have to go?

(11:58):

What if I don't want to go to mediation? Well, this is where you definitely have to talk to somebody in your jurisdiction. Many courts here, again, I'm always speaking about here in Georgia, many courts require you to make an effort at settling your case at mediation and it makes sense why it helps clear the docket. The court wants you to try and settle and if you can't do it on your own, fine, there's a mediator who is trained to help you communicate, identify the issues, and get you over those hurdles. So it is a very, very common tool and oftentimes, but definitely talk to somebody in your jurisdiction, in your area, it is required. And when I say it's required, let me also build on that a little bit. If you're going to have to do it, approach it in good faith. It's a great tool, but it requires two parties willing to compromise, willing to discuss things in an open, honest way.

(13:24):

If you're not approaching it that way, it's not going to be successful. You may still have to go, but the mediation session probably shouldn't take as long as it might if you were honestly discussing everything. But the bottom line is you're going to have to go and you might as well make the most of it. You might as well try to just be open and honest and hopefully that will result in an agreement. Mediators some of them, I can't say every one is the best, but if you have the right mediator, then I can tell you right now your chances of settling just skyrocketed.

(14:14):

This is what they do. They understand how to approach the problems, the issues, the friction points. They understand how to calm things down when necessary to make sure that people are not getting caught up in the emotion and to redirect and refocus people when that's happening. All in the hope that we can keep things calm and keep people on track and get them to a resolution that everybody can live with. So we talked before, I was talking about general benefits. Well, I've gone online like a lot of you have, and this is one of the reasons I did the show. Even though there's a ton of great information out there, there's still information out there that I question that maybe isn't as helpful as it should be.

(15:27):

So let's talk about some stated disadvantages. Well already talked about one, if the parties aren't approaching it in a good faith honest way, it's a waste of time and you may be required by the court to at least try. But obviously if the other party won't engage honestly and with a desire to resolve, then you're not going to resolve it. I mean, but some other claimed. Let's talk about some other claimed disadvantages. Well, there's a lack of formal rules, right? Court, you have formal rules, there's an opening statement, presentation of each party's case, closing arguments, there are rules that must be followed.

(16:28):

Well guess what? There are rules in mediation as well. We're going to go into this in a little more detail probably next segment, but there absolutely are rules. And the first part of every mediation session, the mediator is going to go over those rules. Are they as formal as court? No, but there are similarities, statements of what the issues are by each party. Presentation of documents you think are relevant that the mediator should look at to help bridge gaps and allow the facilitation of these settlement discussions. But to say that there's a lack of formal rules is simply not correct.

(17:29):

So is that a disadvantage? No. Is there a disadvantage because you're giving up your right to bring up evidence? Absolutely not. If it's relevant to your case, if it's important to you, you can bring it up. Now again, mediation. You're not talking about a five day mediation bonanza. And if you have boxes and boxes and boxes of documents, you're not going to have time to present everything and share everything at mediation, but you can absolutely highlight the information, you can absolutely bring out the really pertinent important stuff and sometimes that's a lot. So that's not a disadvantage.

(18:33):

Not only should you, but you need to prepare your file. You need, we've said this before on the show, when you prepare or lemme speak about us when we prepare for mediation, there's a slight, slight difference between what we're preparing for or how we're preparing for mediation and how we prepare for a temporary hearing or even a trial Preparation is key. And so if you're going to mediation, and I'm going to go into this in more detail also, but if you're going to mediation, you need to be prepared, otherwise you're wasting everybody's time because you're going to go there and you're not even going to know what's reasonable. So when you start fighting, it's probably based more on a emotion than on facts. So that's not a disadvantage either.

(19:31):

You need to go with those documents, you need to be ready to highlight the important ones because that's what is going to support whatever your claims are. And mediators will then look at that and say, oh, okay, well I see what you're saying and you have documents to support it. Hey, other side, what do you have to say about that? Seems pretty cut and dry. So that's not a disadvantage either. There really are very few, what I'm going to call disadvantages. What I'm going to start talking about now is I'm going to refocus on a couple of things. Number one, some of those advantages, I want to flesh them out, but I also want to talk to you about things you need to do to properly prepare.

(20:30):

This is such a widely used tool for a very good reason. With the right mediator, the chances of you settling skyrocket, but it requires certain things. First and foremost is good faith, a good faith effort. Second to that is preparation. If you don't prepare, you're wasting your time. If both parties aren't prepared, how can you hope to reach an agreement? You don't even know what to negotiate for. You don't know what the court might look at as being reasonable or not because you don't have the facts to support any position. Alright, when we come back, let's talk about some of the ways to prepare. Let's also talk about some of these misconceptions, some of these other things that people are saying online that I really think highlight the problem, that lack, this lack of good information that's out there regarding such a fantastic tool that can help you get to a settlement sooner rather than later. We'll be right back. 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 AM on Monday morning on WSB.

Speaker 2 (22:06):

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.

Speaker 1 (22:18):

Welcome back everyone. I'm Todd. This is Divorce Team Radio. It's a show sponsored by the divorce and family law firm of Merriweather and Clark. If you want to read more about us, check us out online@atlantadivorceteam.com. And if you want to read a transcript of the show or watch other shows or listen rather to other shows, again, find them@divorceteamradio.com. So today we're talking about mediation, alternative dispute resolution. It's a tool that is used to help get parties to an agreement, which by its nature therefore eliminates a lot of need for prolonged emotionally draining litigation. And don't get me wrong, there's a lot of emotion in mediation. You are making decisions regarding your life, regarding your children, regarding custody and parenting time and child support issues and alimony and will I have enough money to survive and what are we going to do with the assets and what did you do with those assets and should I get more, should I get less?

(23:37):

There's a lot of emotion, but you can't escape that in these kinds of cases. Mediation is a fantastic tool because emotion should not control the case unless you are allergic to money and you just want to spend everything on legal fees, then your goal should always be, how can I get to something that is fair and fair? Can't just be what is good for you. You have to always be thinking in terms of how can we resolve in a way that both of us can walk away, okay, there's a great line, I've used it before.

(24:29):

You've reached a great agreement when both parties walk away unhappy. And what does that mean? It just means that both parties had to give in order to get, if you walk into court or if you walk into mediation and the positions you're taking are very one-sided, I should get everything, get ready for disappointment. And I'm speaking generally because of course there are exceptions to every rule. We've accomplished a lot for clients, but not every case, meaning I can't say in every case, clients got everything. That'd be ridiculous. There's two parties, both of them have wants and needs requests, expectations. Well, mediation is going to help deal with the emotion. Put that to the side. And these mediators are trained. They have tools. Some of them are fantastic because they use these tools to smooth out the rough patches, control the emotion, keep people focused, and get them to a point where hopefully they're open to negotiation and settlement alternatives.

(26:02):

Hey, this is what might happen in court. This is what your position is, this is what the other position is. What are some options? Would XYZ be an option? How about A, B, C? How about 1, 2, 3? What about these things? Hey, there's different ways to look at this. Well, I'm angry about the other party and the positions that they're taking. Well, hold on, calm down too. Well, we wouldn't say calm down, but I get it. I understand why you might get triggered by that. But as quickly as you want to take certain positions about what you want and need, obviously they want and need things also. So let's focus on what the issues are and hopefully we can come up with something that works for everybody. Because if we go in front of a judge, they're going to just make decisions. You're going to present what you want to present. They will present something contrary and then who knows what the judge does. But now, as I said earlier, it's no longer in your hands.

(27:10):

You're just hoping the judge sees things your way. So basically let's talk about the process. If you or someone you know is about to go to mediation, then the way that mediation starts, well it actually starts before you even get to mediation. So to be clear, you shouldn't be walking in cold. And I'm going to go into that a little bit more in the next segment, but it really begins before. But let's talk, I'm going to leap to the point where you're walking in the door and you are there for mediation. What does the mediation process look like? So let me paint a picture. There's a trapeze and firework. No. All right, there's none of that. You're going to walk into someplace. If there's an opposing counsel, then you're going to potentially be at that attorney's office or maybe your attorney's office. That's going to have to be discussed. But you're going to go in and for the first time, both parties are going to be introduced to the mediator. You already know the name of the person, but neither has spent any time talking or presenting anything to the mediator. That's what helps keep them neutral. So you're going to go into a room and there are exceptions to everything, but let's just assume that everybody at the same time will go into a room with the mediator.

(28:57):

Family law is also one of those areas where mediation sometimes you jump right to what's called separate caucusing. I personally have found that it helps even from the very beginning, emotions run very high, putting parties across the table from one another. It could just trigger emotions which can interfere with settlement. But the traditional way is everyone's in the same room, everyone's going to go in and play. Nice. So the first part will be an orientation. Remember those rules that someone said there are no rules, there are no formal rules in mediation. Well, during this orientation, the first thing that's going to happen is the mediator is going to go over the rules that don't exist. I'm being sarcastic, sorry.

(29:58):

The mediator will of course do introductions and then we'll go over kind of the rules of the mediation and set your expectations as to basically the process. We'll talk about confidentiality, we'll talk about threats to others and things of that nature and what the obligations of the mediator are. The mediator will go over all of these rules and then probably have you sign off on an agreement that you're basically saying, I get it. I understand these are the rules of the mediation. Then you'll move to that next part, the gathering of pertinent information, almost like an opening statement. And different mediators have different styles and different approaches, but oftentimes the mediator will say, okay, well let's start with who's the plaintiff in the case? Okay, let's start with you. Tell me a little bit about what's going on and what some of the issues are and you'll have an opportunity. This is a divorce. There are two kids. We have to deal with custody, we have to deal with child support. We both earn money and similar incomes and maybe alimony is not going to be an issue. Division of property and debt. Hey, the other side incurred a whole bunch of debt I didn't know about. I think that has to be dealt with. I have some separate property claims. Boom, that's the case. What am I looking for? I'm looking for this, this, this, and this. Okay, I hear you.

(31:40):

Other side, talk to me. Tell me a little bit more. I mean, do you agree with all the initial sort of factual information about the family, the kids? Yes. Okay, great. So you can sort of leapfrog that and go into what some of the issues are that you think still need to be resolved. And obviously tell me, has anything already been resolved? Are we stuck on certain points or do we just not have any agreement on anything? That will be that opening statement. And then basically they will start to gather more information, flesh out what each party's wants and needs are, and at some point may decide that separate caucusing, meaning separating the parties and meeting alone with the party or their attorney is appropriate and those tools and then going back and forth sometimes at the same table saying, okay, well you hear what she's saying, you hear what he's saying. What about this? What about that? Or in separate caucusing where they're in separate rooms, that's where the magic happens, where the mediator will then go back and forth and just be prepared. It could take a long time, not as long as this break that's coming up. We'll be right back and I'm going to go more into the process and then go into some of these misconceptions and other things that I've seen online that are I think really going to help you understand the process. We'll be right back.

Speaker 2 (33:14):

I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings, WSB, so you can always check us out there as

Speaker 1 (33:24):

Well. Better than counting sheep, I guess, right? That's right. You can turn on the show and we'll help you fall asleep.

Speaker 2 (33:32):

There you go. I'll talk

Speaker 1 (33:33):

Very soft.

(33:38):

Hey everyone, I'm Todd and you are back with Divorce Team Radio, a show sponsored by Meriwether and Tharp. You want to read more about us? Check us out@atlantadivorceteam.com. And if you want to read a transcript of the show, go back and listen to it again. You can find it@divorceteamradio.com. So we're talking about mediation and when we went into this break, I was talking about the process of mediation. First of all, lemme also not first. I've already said a bunch of things, but don't feel intimidated by the process. No one's going to bite you. The mediator is not going to throw anything at you. It is supposed to be a tool that helps facilitate settlement in a calm, hopefully in a calm environment that again, is designed to keep things calm. Mediators who are trained to help keep things calm.

(34:47):

And if you are dealing with an opposing party who has no ability to keep things calm, there are even tools to deal with that, like separate caucusing. So don't feel intimidated, don't be concerned. You will be safe, you will be okay if you need to be removed or separated, fine, just you if you're on your own or if you have an attorney, have your attorney communicate that to the mediator. So once you get in there though, it's a great process and a great tool that I will tell you has helped countless cases settle. Even cases. I'll be honest, there were cases where I'm like, there is no way we are settling this. There's no way I know my client's position, I know the other party's position. I have racked my brain trying to come up with solutions that would be okay with my client. And I'm assuming the other side has done the same.

(36:00):

And we get into a mediation with a great mediator and after many hours, usually I'm walking out going, wow, that was great. I'm so surprised, but I'm so happy that we were able to come up with something that worked for everybody. So the mediator is going to go into that process of gathering information using tools, reality testing and other tools to try and facilitate agreements. In other words, sometimes reality testing, Hey, I know you're taking this position but you understand you're going in front of this judge. This is an issue that's been raised many times. Are you sure? Do you think that you might be able to convince the court to do something that really doesn't happen that often?

(37:00):

That might be a difficult thing. You want the other side to visit with your child once every 10 years. That's not common and absent some really bad behavior. Or hey, you want your spouse to get the toaster, literally that's it. You'll take everything else. Well, this is an equitable division of property state doesn't sound very equitable. You're going in front of a judge who blah, blah, blah. So they will use these tools to try and help facilitate the agreement. And I have seen some good mediators work magic in preparation for the show. I also went online and I saw people who ask questions and these are questions that I get all the time. Also, when they call in and talk to me, let me sort of shoot through some of these. Should I start with mediation, meaning just jump into a case and go to mediation? Quick answer. No. Remember what I said earlier. Mediation's only going to be valuable if you are prepared for it.

(38:21):

I have seen people race to mediation. I've seen people even try to go to mediation. They haven't gone with attorneys. They just go and they think, okay, well we're just going to settle at mediation. And then they come back and either they're coming back because they reached an agreement and they realized that the terms weren't fair or they just didn't reach an agreement because, well, of course I'm not surprised because they weren't prepared. When they're talking about what's going to happen with the kids and they haven't had any discussions, they don't know what's reasonable. And each party's taking positions that the other side can't counter and say, well, it's not reasonable for this reason. Or if you're taking difficult property positions or decisions need to be made regarding alimony or if there's behavior that came up in the case, you have to remember that the mediator is not your attorney. Oftentimes they're not even attorneys. It doesn't mean that they are not incredibly educated about family law, divorce and all those things, but they're not there to advise you.

(39:39):

And sometimes people think incorrectly, alright, well I'm going to go. And they will almost advise us as to what to do. And if you find a mediator that is really doing that, I'll be honest with you, go to the next mediator. That's that's not proper. I actually like the mediators who will with me there helping a client who will push my personality. I'm okay with that. I can control it. If it gets a little bit too pushy, I can say enough. But oftentimes you need that strong personality, not bullying, but that strong personality who can in a very kind, gentle way push people to be reasonable to open their minds to different kinds of settlement terms. Another question I saw, does it mean you don't need an attorney for that reason? No. They are not your attorney. If you need or want legal advice as to any issue, then you need to have an attorney. If you go to mediation prepared, if you go to mediation with an attorney there that knows how to talk the talk, walk the walk, communicate not only with opposing counsel but with the mediator and present things in the right way, you are infinitely more prepared and you have just increased the chances of hopefully settling at mediation. I saw somebody write on a site solutions on more tailored and flexible in a mediation.

(41:20):

I assume what they're saying is they're more tailored and flexible as opposed to going in front of a judge and getting an order. Well, that's not accurate. They went on to say that you're under no obligation to follow a judge's ruling if you reach an agreement at mediation. Well, it's a little misleading. If you reach an agreement at mediation, it will be binding. It's contractual, you signed off on it. That signed agreement ultimately either makes its way into a more fleshed out settlement agreement or it gets in that form included and made a part of a final order. Every agreement gets incorporated into an order. So if a judge makes a decision and puts it in, well, that's the order. If you take an agreement, put it into a final order, it adopts it. That's now the court's order. I think what they're trying to say is that you had a say in basically what the terms are as opposed to a stranger making decisions about your family that I agree with. I've seen people concerned with whether or not mediation can work and deal with issues of abuse. What if there's abuse? Actually, I will tell you that there's a specific part of the mediator training that deals with issues of family violence and abuse.

(42:55):

Just because those issues are present doesn't mean mediation as a tool can't work. And there are safety measures that can be put in place like the separate caucusing to make sure that everyone is safe and everyone feels comfortable enough to engage in those discussions. And there have been too many situations where I have been a part of a case where I started by going to the mediator at the beginning and saying, Hey, listen, there are some issues here. I'd like to immediately start with separate caucusing. The parties can't be in the same room. It's not a problem. You just need to, oftentimes, I would say, deal with that ahead of time. Contact the A DR office and say, Hey, there are some issues like this present. That way when you get there, it's already set up. You're going to jump right into the separate caucusing and going back to that tailored and flexible, come on the terms in a final order by a judge can be flexible as well. It just depends on what you've asked for and fought for. And what I would love to fight for is more time, but I can't give that to you.

(44:17):

Hopefully this helps and thanks so much listening.