Ep. 148 – The Mediation Process

Jeff 00:00
Hello, everybody out there. Today with Episode 148, we’re going to discuss the benefits of the mediation process in divorce. So if you’re ready, let’s get started.

Doreen 00:21
Are you ready to create a life that’s better than ever before? We are Doreen Yaffa and Jeff Wilson and we are here to give you the strategies you need to create the life after divorce that you deserve, and desire. As partners, both in marriage and coaching, we use our expertise as well as our own personal experiences to help you make the next chapter of your life the best chapter.

Jeff 00:54
Hey, how are you Doreen?

Doreen 00:55
Good, good. I know this subject came up because we’ve got a few really involved cases right now involved in mediation.

Jeff 01:03
Yes.

Doreen 01:04
And Mediation is an excellent place to resolve your cases, your divorce. It just takes understanding and patience.

Jeff 01:16
I thought it would be a great topic because it seems like the mediation process and you know more about it than I do, of course, as a an attorney, but I think the mindset that you have to have the mindset going into it. And the benefits that you get from it are very congruent with the coaching mindset.

Doreen 01:36
I think it is because you got to be ready to sit down and mediate. Well, first of all, let’s talk about mediation. Mediation is a process where you come together generally with a mediator. And usually this is someone who’s certified through your state, who is experienced in family law, if we’re dealing with divorces, sometimes or even retired judges or judges that have stepped down from the bench. They might be very experienced, family, lawyers, people like this. Usually the parties and most typically with lawyers, but sometimes people go with a call pro se just the parties, depending on the type of divorce that it is. And sometimes we have experts there, such as forensic accountants, sometimes parenting experts, such as parent coordinators, people like this, the process is confidential, meaning that it is a confidential process in which you can share thoughts and negotiations without it being brought out of that process out of that room. So the purpose of that is to permit the free flow of negotiation and discussion where someone is unconcerned. Well, if I say this, I think I hold it, yeah, hold me to it, you know, outside of this negotiation outside of the process, so nothing that is discussed in the mediation process is permitted in at least Florida, and I assume most states to be discussed outside of whoever is there. And in fact, in some states, including Florida, if you have those discussions with people outside the mediation process, you have broken the oath of mediation. And there can be issues with that. Yeah, it’s it’s taken very seriously.

Jeff 03:23
Now, there’s other benefits to the mediation process. Can you tell me a little bit about how it could save you money?

Doreen 03:29
Well, yeah, I mean, I just wanted to, I wanted to finish about the process itself. Okay, go ahead. So generally, in today’s world, a lot of the mediations are done by zoom. Okay, I don’t know if that’s such a great idea. But it’s kind of where we are, I would say most of the mediations that I do are by zoom, and that our firms are involved in I have to come to law firms. And I think it’s because the ease of doing it. And so basically, there are many times in a mediation where you never even see the other side. Because we were in different rooms, different zoom rooms, typically, in in the formal name is a caucus, it’s when you the mediator goes with one group. So let’s say the husband side and the husband’s team, and then, you know, talks about the issues and then brings back to the table to the husband side or the wife. So the wife side, sorry, and talks there. And then it goes back and forth. And the mediator is a person jumping between the two rooms. I’m not sure that that’s such a great process, not to sometimes be in the room together for a number of reasons, or at least to start the process off together, and maybe at times, you know, continue, maybe separate and then come back together. I’ve even had mediations where I’ve agreed with the opposing lawyer, that the parties will just go in with the mediator and talk to the mediator because the lawyers maybe aren’t needed or putting more of a hamper in it. Posturing, and posturing right, the posturing is going on and they, the mediator just wants to get down to the dirt, the dirty with the parties, and especially when it comes to children issues, you know, like, Hey, can we really work out this visitation schedule? Like the lawyers should probably not be involved in that necessarily. Right.

Jeff 05:12
Yeah. And you know, speaking of that, also, when you’re taking the lawyers out of the picture, when you’re in a mediation, you’re kind of taking the judge out of the picture.

Doreen 05:22
What do you mean, kinda, are. Well, yeah, there’s no judge there.

Jeff 05:26
I mean, to have somebody else.

Doreen 05:28
The judge can’t even know about the process. The judge knows it’s happening.

Jeff 05:32
Okay.

Doreen 05:32
Okay, the judge even orders mediation. Many times, at least in Florida, you’re ordered to go to mediation before you go to your trial, you’re ordered to go to mediation, certain venues. With regard to before you can get hearings for temporary relief.

Jeff 05:47
You’re deciding your own fate.

Doreen 05:49
Correct. In other words, so one of the other things is that, it’s you can be so much more creative in the mediation process, and do things that a judge cannot do. That’s what you’re saying?

Jeff 06:02
Yeah.

Doreen 06:02
Right. That’s one of the benefits. So the process is, like I just said, that’s finished with the process is about, you know, negotiating back and forth. And if you come to terms, you can have a global settlement, which is all of the issues can be resolved in your entire case, yay, or maybe you you can’t make it through all the issues, but you make it through some of the major issues. And you can have a partial agreement. Now, a lot of times lawyers don’t like to do partial agreements, because they’re of the opinion, a lot of them that, well, let me hold on to that one issue that I’m willing to give an on because I can use that to negotiate this other issue. And I get that, but I think it’s a good idea to get some of the bigger issues resolved, if you can.

Jeff 06:46
Little things can probably explode into bigger things later on to that’s probably why you’d like to get a complete.

Doreen 06:51
Yeah, I mean, now, in most in most jurisdictions, if you leave that mediation process without a signed, sealed and delivered, meaning – executed agreement, you you can walk out, have an agreement verbally, and it’s gone, it doesn’t matter. You have to at least in Florida have an executed agreement. It’s even though you may say listen, it’s you know, seven o’clock at night, now we’re all tired. And so let’s just you know, we’ve all grown agreed verbally, the problem, and the risk of that is that you can go home, and you can decide something different than next day. And it does happen more often than I want to suggest, however, having a long winded mediation that goes on for hours and hours and hours, which it depends how long it takes, there is no magic formula. But it starts to become a fatigue issue. People are hungry, even when you bring in food, they’ve been stuck in one position for a long time, their brain power, their emotional level of you know, ability to continue to negotiate comes to a level where they just can’t do it, you’re tired. So there’s..

Jeff 07:58
Is there any kind of pre and pre negotiations you can do to make the process shorter?

Doreen 08:04
Yeah, you know, I mean, that’s a great idea, you can certainly talk with your lawyer about sending an offer settlement in advance. So it can be consumed beforehand, so that that way, when you get to the mediation process, at least you’ve already got a head start. And it’s expensive. Think about it, you got a mediator, you got two lawyers, potentially you got experts there, depending if you’re going if you’re going just the couples, which we do a lot at SplytUp, you know, the couples generally go without the lawyers, then that’s a much easier way as far as on the pocket expensive compared to what? Well, that’s the thing, like mediation is going to be less expensive than going to trial.

Jeff 08:42
Sure.

Doreen 08:43
And the thing about going to trial, as I think we were alluding to, is that the judges can only work within the realm of the law. So especially with more complex cases, you can be really creative in the mediation process, when you’re settling a case to you know, award certain assets to one party because of tax benefits and to think in creative ways that judges can’t do, right. Both cases settle.

Jeff 09:14
And I think when it comes to the child custody and visitation, everybody’s schedule is so differently, it’s kind of makes sense to work it out between the two of you versus the judge, because you have your own flexibility and things.

Doreen 09:31
So say it again.

Jeff 09:33
In other words, there there’s things that are going on in everybody’s individual lives. And the judge may not know about, so when it comes to this a child custody, or when it comes to expenses or whatever, everybody has their own story. So with mediation, there comes flexibility.

Doreen 09:58
Well, that’s what we were just saying.

Jeff 09:59
Yeah, no, so In other words, especially with child custody, because the judge may just say 5050.

Doreen 10:04
Oh, hold on. Florida nowadays there’s a presumption of 5050.

Jeff 10:11
But in mediation, you can be more flexible.

Doreen 10:14
You can be more flexible. And yeah, because the burden of proof if you’re going to come in and try to ask the court for something less than 5050, you have to come in with the evidence why, right? What’s the best interest reasons that you can present to the court? So yeah, on the mediation, pleasant present, plus, like I said, it’s a private process. You know, don’t forget that the court process and going to trial, it’s a public forum, right? Anybody can walk into a courtroom. Generally, there are some restrictions depending on the court and things of this nature. But most courtrooms if you go down to your local courthouse, you can walk into any courtroom, it’s a public forum. But mediation, is probably – the thing is, a lot of times people go to mediation, I think, and they’re just not ready, meaning they’re not ready because they don’t have all their financial ducks in a row. Right? They haven’t worked through really understanding the issues sitting with their lawyers and understanding the issues. They’re trying to get past the pain. So they want to go to mediation quick. But they don’t have the resources yet. And the tools and the knowledge to be able to figure it all out. That’s the first thing. So you got to be ready. And you got to be ready also emotionally, right? You know, when the feelings and the tensions are high, and the emotions are strong. There’s a phase in divorce, and you want to kind of make sure that the parties are at a, they’ve been through enough. And they’ve come to realize and set the emotions where they need to go so that they can come to the mediation table and just do the work at hand and leave those leave that blame game, and the hurtful language and the ultimatums and the name pointing and all these things that you know sometimes happen in mediations which a good mediator will not permit, leave that out the door. Right, try to be there at a place of really kindness. We talked recently about, I think it was anger, we talked about in our anger episode about dealing with somebody who comes at you with anger. Well, that happens in mediation a lot. But remember, in the mediation process, you’re probably not even speaking directly to your spouse. But it gets conveyed. Some of it gets conveyed through the mediator. You can also tell your mediator, I’m going to tell you this, but I don’t want you to convey this to the other side.

Jeff 12:42
Okay.

Doreen 12:42
A lot of times in mediators will say, I’m going to give you kind of their rule, the rulebook upfront are good mediators do and they’re going to a lot of them will say listen, I’m going to assume that I can go back to the other side. And we can I can talk about anything that you’ve talked to me about, unless you tell me this subjects off base.

Jeff 13:01
This sounds like a referee. He tells you the rules and beginning and you know, this is the way it works. And that’s kind of that’s interesting.

Doreen 13:11
Yeah. Well, there are rules in mediation.

Jeff 13:14
Yeah.

Doreen 13:14
And part of the rules is anything that you don’t want conveyed through the mediator, you need to let them know, other mediators will say, I’m going to presume that I can’t tell them anything unless you tell me it’s okay. And I’ll go through that. Right.

Jeff 13:28
Yeah, I would assume that it’s very difficult to go through mediation when one side doesn’t want to be divorced. Let’s say one side wants to stay married. =

Doreen 13:38
But that means you’re not emotionally ready. Ready, you’re not ready. You’re not ready for it. And so I think the first thing you want to do is really, like I said, get your ducks in a row understand your financials. In Florida, we have financial affidavits. Most states have something like this, where you’re going to have a full disclosure of what all the assets are, what the liabilities are, what the incomes are for support purposes, you want to have all that nice and ready to go and be organized, right. And then you want to also, again, we said, have your meeting with your lawyer, understand what the mediation process looks like in your particular state, in your jurisdiction in your venue, and then emotionally, make sure you’re ready. And if you’re not, don’t be pushed into the mediation process if you’re not ready, but also don’t be avoiding it and saying, You’re not ready when you’re just avoiding it because you don’t want to deal with it. You don’t want the divorce, you’re not ready to go through that. You’re going to have to get to that point place at one at that point at one place or another. Now one more thing about mediation is, mediation can be also used when you let’s say you’re trying to settle your case outside of mediation that’s just negotiations to and from both sides between generally the lawyer or just conversations and then you’ve got some sticking points that you just can’t get through, let’s say it’s a visitations, everything else is resolved go to mediation on one topic, you know, make it a two hour mediation, you can use mediation at anytime you want, there’s no restriction. So sometimes you just need it to get that little edge just to get you through to the finish line.

Jeff 15:20
Interesting.

Doreen 15:20
I think it’s a great process.

Jeff 15:22
And here are a couple of tips that I think emotionally that our listeners can use in mediation, above and beyond the law, the legal side may be something that might help him emotionally, because you want to you want to make sure that when you do go into mediation, you go into it without unrealistic expectations.

Doreen 15:47
Yeah, well, definitely knowing your high side and your low side that that best case scenario, worst case scenario, being realistic is a good one.

Jeff 15:55
For having those expectations of what you would walk away from and what you wouldn’t you know, what you want, what you don’t want, that kind of thing is important.

Doreen 16:03
You know, what they say? What’s something like, if you gave too much, if you think you gave too much and got too little, then the mediation process worked. You know, you gotta give a little, take a little while and then take a little, give a little.

Jeff 16:18
And be the bigger person and maybe give a little bit more

Doreen 16:21
You know, what you don’t want to get stuck over. It’s really not worth it, because you got to put a cost on the emotional part of staying stuck in the me, in the sorry, in the divorce process. Right. So that has a value too. Right? Just getting it over with I think is worth something.

Jeff 16:44
Yeah. So in being that said, don’t underestimate the power of compromise. You know, when you compromise, and you’re willing to give up something that may be important to you, I think you’d become very empowered.

Doreen 17:02
Well, and also, I want to suggest that I think what I’ve seen sometimes happen is that a party will hold on to something and not agree, because they know how much the other person wants it right? Even though they could care less. I told you about the stair the chair story, right? The chairs story is that this this rather, you know, older couple, they were in their late 70s Getting divorces when I first started practicing. And they had many, many, many, many, many millions of dollars back then they were palm beach chairs. And they were arguing over one chair, it was an antique, like this amazing, like one in the world chair. And both of them they collected antiques had to have the chair. Yeah, they ended up settling it but that one chair was going to bring us into trial, it was really sad. And but we settled it.

Jeff 17:55
Maybe cut the chair in half.

Doreen 17:56
And I don’t think you can do that.

Jeff 17:59
And then that brings me right into don’t make any decisions based on your emotions, right, which is kind of like what we’ve been talking about all along decisions made on on emotions. And the last one, and probably the most important one is don’t involve the children, any disputes you might have, even in the mediation process.

Doreen 18:20
You’re not supposed to be speaking to anyone else during the mediation process. So but what I do know, it happens from time to time is that people do converse with third parties, family members, not so much I’ve never had a mediation where someone that I know of was talking to a child might be an adult child. And I think that’s just I don’t know, I would question that as well, the adult child child of the parties, you know, why? Why go there? Right. But But I have seen family members being involved in people sneaking away and calling them on phones and things like this. First of all, it’s a violation of the mediation process in the courts get upset with that, and they could call you out on it if they figure it out. And second of all, it’s your settlement. It’s your mediation. And it’s really time to take control of that. And to own that and to do what’s in your best interest and not be influenced by others. You can certainly listen to people’s opinions and thoughts. But respectfully, then you have to put those away as well. And make a decision on your own on your own.

Jeff 19:26
And keep it keep in mind this is your future is easy. It’s your next chapter of your life after divorce. And I think that once you get through the process, then we can start healing and start moving on and having the best life ever.

Doreen 19:43
Yeah, well, you know, life is both good and bad, though. I know so you can have a better life and you can have a happier life. For a lot of these marriages that just you know are at a point where it’s time to say goodbye. It’s time to move into the next chapter. And that doesn’t necessarily mean that the marriage was a failure. It just means that it’s time has come to an end.

Jeff 20:08
You know, saying goodbye.

Doreen 20:09
Are we done?

Jeff 20:10
We’re done.

Doreen 20:11
Oh, we’re done. Okay. All right, everyone. So yeah, think about the mediation process. And listen, mediation can be used post judgment to see if you got issues going on after the divorce is final. Rather than going right back to court, I think it’s better to see if there’s a way to try to settle the case, if possible, you don’t want to start engaging in litigation again. And mediation might be a way to do that.

Jeff 20:35
I guess we’re not ready to say goodbye.

Doreen 20:38
Are you trying to? Do you want to go somewhere? Have you done?

Jeff 20:41
We’re done. That’s it. Everybody. Have an amazing week. We’ll talk to you soon.

Doreen 20:45
All right, bye, bye.

Jeff 20:54
You have the vision of what you want your life to look like after divorce, but maybe you just don’t know how to get there. So if you’re ready to take control of your life and want to find out more about our coaching, visit us at LADcoaching.com. That’s LAD as in LAD-coaching.com.

Doreen 21:16
Until next time, have an amazing rest of your day. And remember, yes, you can…

Doreen & Jeff 21:23
Have an amazing life after divorce.