Do Divorce Lawyers Understand Divorce Mediation?

Tim: The myth was all Divorce lawyers understand and support Mediation. That was the myth specifically.

So I turned this into, do divorce lawyers understand Divorce Mediation? And we can answer that in a couple different ways.

Lisa: No, I don’t think they understand the pure process of mediation. They just have had a different training and different mindset.

A lot of attorneys, a lot I think I’ve mentioned before have gone through the mediation training in order to retain more clients.

And they understand that this is something that is becoming more popular and people are actually looking towards.

Tim: Yes.

And so they’ve decided to like incorporate that into their businesses. I don’t think they really understand the benefits of the pure mediation process.

And a lot of them aren’t able to do it without switching over to their litigation mindset.

Tim: So that’s why we talked about that before. It’s kind of just a mindset is different.

Lisa: It is. And the training and you have to have a certain type of personality, even make it to Law School.

That alone and become an attorney and pass the bar and practice. It’s adversarial. It’s competitive.

It’s win-loose. It’s get the leg up. Mediation is exact opposite.

Tim: Right.

Lisa: And they have the hard time understanding that the process should be completely opposite from what to do with their litigation clients.

So I don’t think they understand it completely. They’re able to do it. They have their certification.

They have their training. They understand that they can’t represent one or the other after mediation but as far as pure process and the communicative part of it, I don’t think they really understand that part of it.

Tim: Okay. And we talked about that quite a bit before. So a big difference between an attorney mediator and a paid non-attorney mediator through the mindset of the mediator…

Lisa: Just a different perspective. It’s a different way of seeing the end result.

Tim: Right. And I thought one of my questions were how to choose a Divorce Mediator. See if I have that on here anywhere.

Well, that’s it. It’s certainly something that they should consider…

Lisa: Yes.

Tim: …when choosing a Divorce Mediator is they want attorney mediator, they want a non-attorney mediator…

Lisa: And it will be a completely different experience either way. I think you will be able to get somewhat of the result you are looking for.

And it will be a little bit quicker and that will be cheaper if you go mediation route.

If you would like to get away from that adversarial, aggressive, competitive process, then I will recommend a different perspective coming from a different mindset.

A non-attorney mediator would be your best bet.

Tim: And cost like to?

Lisa: A lot cheaper.

Tim: A lot cheaper for your mediation service than because when you pay mediation from attorney you’re paying their…

Lisa: You’re paying all the stuff that goes in with their firm and everything that they’re involved in.

Tim: Yes.

Lisa: So…

Tim: There’s lot of little hidden fees.

Divorce Mediation Is Not For Everyone

Tim: Oh, I like this one.

Lisa: Okay.

Tim: So the myth was mediation is always the best option for every divorcing couple.

So is Divorce Mediation is the best option for everyone?

Lisa: No. In my earlier days and when I was training and going to school, I just thought this is the answer to world peace.

And everybody should just sit down and if you’re a good enough mediator, you can get an agreement out of anybody.

That is not the case. Now there are issues especially in Divorce that you do not want to mediate. You shouldn’t mediate.

It’s not appropriate for mediation. It’s something and that’s why the courts are there and that’s why good attorneys are there and that’s why the judge is there to protect people from these kinds of things.

And that’s domestic violence and any kind of child abuse going on and any kind of serious criminally activity with money on either side.

Those kinds of things cannot be mediated.

Tim: Right.

Lisa: And that is when you have to ask those really good questions on the intake and you find out what’s going on both sides.

And usually after the initial consultation, you can know whether if you can move forward with this.

Tim: And what issues there are maybe.

Lisa: Exactly! And you need find and you need to make sure that they are honest with you.

Tim: Yes.

Lisa: Because a lot of times they just sort of, ‘Let’s just do this. Can we just do mediation?’

And we need to be able to ask the hard questions and find out what’s going on. And that’s not, unfortunately, there are things that cannot be mediated.

They need the law. The need the courts. They need that whole system on their side.

Tim: And you need to have obviously a high level of honesty and integrity.

I mean especially when it comes to like discussing assets and income and things in that nature.

Lisa: Right.

Tim: You need to be open and honest. I mean mediation doesn’t work if you’re trying to hide something.

Lisa: No.

Tim: …nor saying something doesn’t exist when it does. I mean that’s just not going to work.

Lisa: And I think maybe it’s because I do come from a different background, from a background of Psychology, we kind of get a feeling to people.

And you get those red flags and you think, you know, what, this probably is not the best option, especially if it’s the other party that’s going to be damage.

Tim: So you’ve had cases that you started mediation…

Lisa: And you have to terminate it.

Tim: …where you got to a point where you’re like. . .

Lisa: You have to terminate it.

Tim: ‘…this is not going to happen.’

Lisa: When certain things are disclosed, you have to say, ‘You know, what this is not the best arena for this. This is not the best option for you. And I really recommend that you go find separate attorneys and deal with these issues.’

Tim: Okay.

Lisa: Now you can come back and do a parenting plan if that’s something you want to work out.

But particular issues need to be taken care within the court system.

Tim: Yes. And we talk a lot about saving money and doing your Divorce with the company like ours or using mediation and have attorneys but there are just times when there are needs for attorneys.

Lisa: Right.

Tim: The only thing I try and get across people is that, it’s not and this shouldn’t be your first option. I mean some case you’re just going to need an attorney.

Lisa: Right.

Tim: There’s no choice about it.

Lisa: Right.

Tim: But for 95% of population is that with our services combined, our service alone, your service alone, they can get through this for a lot more cost effective and less emotional drain.

Well, maybe more emotional drain, it depends on how the mediation goes.

Lisa: Exactly! But the end result you come out healthier, happier, more saying with a lot more money than if you would have decided to drag it on to court and enables to heal and serve that healing process quicker.

Tim: Yes. Okay, good. Any other myths that you have like of common questions…

Lisa: You know those are all I mean…

Tim: …are those pretty good?

Lisa: I had pretty much covered all of them. And there are things that I hear all the time. People are saying especially the wimpy one.

Tim: Really? I wasn’t even going to address that one. Is there anything about them?

Lisa: Because some men are just and a few times women are like, ‘Really? I already have a therapist.

Tim: Yes.

Lisa: I don’t want to sit and cry with my ex-husband. We’ve done this forever.

Tim: Yes.

Lisa: But this is I just want to tell them over and over that this, ‘If you want to be in control of this process, you want to be in control of what happens with your kids, and your money, and your health, then this is the process that is worth giving a try. You need to try this process. It saves everybody a lot of grief.’

Tim: Well, yes, it’s definitely good. It’s a good process, tough process but good results.

Lisa: Yes.

Tim: …and worth it.

Lisa: And in the end it’s worth it for sure.

Tim: Yes.

Divorce Mediator & Attorney | Can You Use Both?

Tim: Okay.

Lisa: Your question?

Tim: Yes. So the myth was there’s no place for lawyers in mediation. And so if you use mediation, can you still have a lawyer?

That’s how I rephrase the question.

Lisa: Yes. So I am a non-attorney mediator. There are many attorney mediators out there.

But unfortunately, if they’re attorney mediators and they have their mediator had on they cannot give legal advice to their clients.

Tim: Right.

Lisa: But they do have the resources within their firm to have outside counsel or to have different kinds of referrals and those kinds of things within their firm.

Now as a non-attorney mediator, I really do suggest that they at least have a consultation each of them with an attorney in order to ask those legal questions that I cannot provide the answers for.

Even if I knew the answers, I’m not allowed to give them those kinds of advice.

Tim: Right.

Lisa: So yes, now as far as the mediation process, I know some mediators don’t mind having their attorneys in the room with them during the process and especially if they’re attorney mediators.

They know how the lingo works. They know how to handle them.

Personally, consult with your attorney. Call your attorney. Ask questions as much as you want.

Take your agreement to your attorney if you feel like that’s something that you would like them to review before you sign it.

But I don’t have the attorneys present during the mediation processes itself.

Tim: What’s the best way to involve the attorney?

Would you recommend that they or maybe it’s all of the above, maybe do they say, before they come to mediation go and ask legal questions to an attorney or your attorney so you can come in with the legal foundation?

Educationally, you can make informed decisions or do they go to an attorney during the process of things come up or after they have mediated and we’ve put that down on paper with the agreements.

Lisa: All of the above.

Tim: And any of those times would be…

Lisa: Yes.

Tim: …fine times to take it and…

Lisa: Yes, there’s never a time I’m going to say, ‘Ops, you’re not allowed to go to an attorney after this point.’

Tim: Right.

Lisa: So I want them to feel like they have that options that are able to retain control of the process that they are in charge.

They’re at the wheel of this mediation agreement. But again, like I said, so much more can happen and that feeling of being in control is easier to have when the attorneys aren’t present during the actual mediation when we’re talking and agreeing and asking the questions in going back and forth.

That the attorneys are always I will send whatever you want me to send you to your attorney.

I send out letters and summary letters after each mediation session to remind you what we talked about, what we agreed on and those can also go to your attorney if you feel like that you want them to look at those as well.

So yes, they are allowed to be the entire way. Before you come in, during the process, after the agreement is finished and you need to have that representation, so, you feel like you’re making the best decision as you can.

Tim: So what happens if the parties come in, they mediate, they come to an agreement, they go after their individual attorneys to say, ‘Hey, this is my best interest.’ and attorney advises them otherwise.

Have you had that happened? And how did you…

Lisa: Yes. I have that happened. And the attorney called. And I was able to talk to them.

And let them know with the confidentiality agreement in place the parties gave me permission to let the attorneys know what we have come to agree.

And it was just one particular point that they were worried about. And after we had a conversation and I talked about the session itself, they understood that this is probably the best for the client.

Obviously, they go right to their logbooks and to the [stat chips 04:07].

Tim: Yes.

Lisa: And everything that’s in place and they want to protect their client. But they understood that this probably was the best for this particular situation.

Tim: Given the whole global this…

Lisa: Right.

Tim: …agreement.

Lisa: So I have had that enough very often. But I think that if an attorney is always, I’m willing to meet with them.

I always get permission from the parties first because of the confidentiality part of mediation.

But I find that most attorneys if they’re clients feel like they are happy with this and this is something they really feel good about, the attorneys going to be okay with that.

California Divorce Mediation – Are Women At A Disadvantage?

Tim: Let’s talk about the next myth. Are women at a disadvantage in mediation?

Kind of similar to the domination I guess. Well, I mean I guess that could go either way.

But are women at a disadvantage of mediation? The myth was women are at a disadvantage in mediation.

Lisa:  Definitely not. Again, when there is an opportunity for both to sit down and for the mediator facilitator to help with that communication aspect of it, to allow the woman to be able to say things that she wouldn’t be able to say with an attorney present or to say things definitely not alone without anybody because they’re just not speaking, they’re not communicating to the best way possible.

Women are at advantage. It’s advantageous for women to do mediation because they don’t feel like they’re at a vulnerable weaker position.

And if you’re a stay at home mom or a stay at home wife and you haven’t working haven’t been earning the money this is a situation where you can feel like you’re on more equal ground instead of having the husband with the high power attorney.

And then you’re kind of at lost and just kind of have to go with the flow and takes whatever he puts out.

Tim: So mediation more of bringing people to that even grounds.

Lisa:  Yes.

Tim: Where they can get through their situation, get through their divorce and come to agreement.

Lisa:  And learn how to communicate again.

Tim: Yes.

Lisa: It’s not therapy. But it is a place where you can learn communication skills enough to deal with especially with touchy subjects such as kids.

And what’s going to happen with them. And property and special things that you’ve shared but now you don’t want to share.

So it’s a place where all of that can be discussed and gone over without the conflict and the aggression and the aggressive attitudes.

Tim: So there’s no disadvantage on women?

Lisa: No.

Tim: It’s even playing field for both parties?

Lisa: Yes.

Tim: That’s more than…

Lisa: If anything women, they have an advantage.

Tim: How is that compared to something else?

Lisa: Especially litigation.

Tim: Alright.

Lisa: Especially litigation if they can afford an attorney or the husband has an attorney already.

And he’s the breadwinner which happens quite often especially in this valley where it’s a family oriented community and women are trying to stay home with their kids.

They don’t have the money to get the big time attorney to compete with the other one.

Tim: Okay, so, it’s not an advantage technically speaking in mediation? It’s an advantage financially, I guess?

Lisa: Right.

Tim: Because if someone watching this they may think ‘Oh, I don’t want my wife to manage—‘

Lisa: No! Oh yes, you’re right! Thank you for clarifying that.

So, yes, definitely, exactly no!

Nobody has the advantage except for the person who has the opportunity to come and put everything around and lay it out equally.

Tim: Got you.

Lisa: Yes.

Tim: So I have to say if I was the working spouse and I had all the money and close the accounts and did all those nasty things sometimes people do, mediation would be good because the spouse not working won’t have access with the money nor will be able to get…

Lisa: Right.

Tim: …their attorney to represent their interest and that sort of thing.

Lisa: Right.

Tim: Okay.

How To Use Life Insurance To Protect Child Support

Jon: Well, one of the other places where this goes, this is some actually, creating need for additional life insurance where people may have not thought about it before.

Let me give you an example. Let’s say a husband and wife Divorced.

And as a result the husband has to pay some support to the wife on a monthly basis for X number of years whatever that maybe.

Maybe until the child is 18 or something like that. Well, what happens if something were to happen to that primary wager, the father the male in that scenario?

Well, same what happened in the not many would stop coming. So a lot of times what people would do and they do this to benefit their children too, is to go ahead and take a life policy.

So for example, the husband or the ex-husband would take a life policy out and the wife would be the owner, excuse me, the owner of that life policy.

She would own it. By all the means that means she has all the rights to it.

She can decide who the beneficiary is. She can make changes to the policy.

Meanwhile the husband or the ex-husband is the payor. He is the one that pays the policy.

So he might pay the premium on each month for the policy. And then the beneficiary is either the wife or the children.

So that way if something were to happen to the husband, some unfortunate accident, the wife would still continue to have proceeds being able to be paid to her without even him being there.

So it’s not a double tragedy.

Tim: Yes, and I’ll set this stage for you on this, just in details. So we’re talking about, let’s say a wife in this case, we’ll use the same scenario.

Stay at home mom, 20 years never work and that’s in our town that happens quite a bit.

Jon: Yes.

Tim: A husband working full time job maybe close to retirement or what have you, you get Divorce.

Now there’s going to be spousal support well same child support as well unto the next…

Jon: Right.

Tim: And if he were to die, the payments would literally stop.

Void any retirements or anything like that where the beneficiaries been for purposes of alimony, spousal support and child support.

Those things they will just stop. There’s no more income. There’s no other place to get this.

Jon: And where would you go?

Tim: Right.

Jon: There’s nowhere to turn to. And the courts can’t help you at that point.

Tim: Right. That’s it! The risk is spouse if the payor spouse dies, the spousal support stops instantly.