What Mediation Really Is

Ron Gore 0:00

You've been told by your family law attorney that you're going to mediate your case, but you're not exactly sure what that means or how to get ready. I'm Ron Gord, co-founder of Co-Parent Academy, a family law attorney, a mediator, and today we're going to talk about how to prepare for mediation. I do about 150 mediations a year as a mediator. And so in this episode, I'm going to be talking about some of my experience as well, although I'm going to have a more complete episode where I'm talking about some of the mistakes that I see people do when I do these mediations. First off, mediation is a structured form of settlement negotiation. You're going to try to negotiate some or all of the aspects of your case. If you hear a cat in the background, that is our cat Lemon, apparently unhappy that I'm recording this today. So hopefully, mediation isn't the only time that you're trying to negotiate your case. Hopefully you have from the very beginning been sending offers back and forth, trying to work together in good faith to reach some agreements on things that aren't controversial. But if you haven't been able to get it resolved prior to this point, then typically before you get to a trial, the judge is going to require that you mediate the case. The judges do that because they don't want to take up the docket unnecessarily for trials that could have been negotiated if the attorneys had gotten together and worked on it. And also, you know, there's so many deals that get done on the courthouse steps with the docket already taken up, that could have been done before. So that's why the court's typically going to force you into mediation.

Court Pressure And Exceptions

Ron Gore 1:32

There's some circumstances in which mediation is not appropriate. Circumstances with domestic violence should be closely looked at to see if it's even possible to have an equitable mediation situation. There are lots of good reasons why someone who's been the victim of domestic violence isn't prepared emotionally or psychologically to have to negotiate these things with the person that abused them. So if there is a history of domestic violence in your case, that's something to be considered. And most states are going to have statutes or at least court rules that address what to do about mediation in the face of domestic violence.

Shuttle Rooms And Mediator’s Role

Ron Gore 2:12

Some mediators like to have everybody in the same room. I don't find that particularly helpful. I kind of feel like if you were able to have everybody in the same room to do a mediation well, you didn't really need the mediation. You could have done an informal settlement conference or had some other informal way to get it done without the mediation itself. So typically I find that it's better to have the parties in different rooms. They can be different rooms physically at the office, or they can be by Zoom, for example. And then the mediator goes back and forth, carrying offers, back and forth, trying to understand the parties what their real concerns are. The mediator's job is to try to get the parties closer together sufficiently so that they can reach some sort of agreement that they can live with and move on. Not being perfectly happy because almost nobody is when they leave a mediation. The goal is to find a solution that you can live with that can stop the litigation and all of the damage and expense that it causes and have something that is in the best interest of your children and is fair and equitable to you, even if it's not everything that

Define Issues, Possible And Likely

Ron Gore 3:20

you wanted. So, how do you prepare for mediation? First is to know what the issues are. If you listen to the video about depositions, we talked about identifying what the litigation issues in a case are. You're going to do the same thing here. You have to know what needs to be resolved. So step one is to make sure that you understand what the issues are. And then step two is to make sure that you have some understanding of not only what is possible, but also what is likely as an outcome. There are lots of things that are possible as a result in a case. You know, when it comes to property and debt division, it is possible technically that one person will get 100% of the assets and one person will get 100% of the debts. But that's not a likely outcome. You know, in a custody case, it's possible that one person gets 100% of physical custody and the other person gets nothing. That's not likely. So knowing not only what is possible in terms of a range of options, but in your specific case, with your facts, with your judge, what is a likely outcome? Once you have that set of information, what the issues are, what's possible, and what's likely, it's time for you to come up with your position for each of

Home Run, Live With, Deal Breaker

Ron Gore 4:34

those issues. And I find it helpful to frame the issues in three layers. The first level is to say if you got everything that you wanted, if you got a home run on that issue, what would the outcome be? What does that look like for you? The second level is what could you live with, although you wouldn't be happy? If this term was in the agreement for this issue, then you would sign it. All right, you wouldn't be having a party, but you could stop the litigation, you can move on with your life. The third level is deal breakers. For each litigation issue, is there something that if that term were in the final agreement, you're not signing it? It is an absolute deal breaker for you, no matter what. It's key to know your positions, those three levels for each litigation issue because it helps frame for you the entire conversation. Sometimes, what I've found is if you do that in advance of the mediation, if you identify your home run, what you could live with in your deal breaker, you'll find that the deal breaker really isn't necessarily a deal breaker. That was your gut emotional reaction. And when you had a chance to sleep on it, you decided, yeah, I don't like that, and we need to maybe not go there, but it's not a deal breaker. There's some room there that we can work with. That's why it's important to do this preparation in advance, to get that visceral reaction out, and then to be able to sleep on it and to reconsider and then to refine what your position is on each of those issues.

Gather Proof For Each Issue

Ron Gore 6:06

Now that you have your positions for each litigation issue, it's time for you to make sure that you have all of the facts and information that is important to get you there. So just like when you were getting prepared for a deposition, you went through and you made sure that you knew absolutely everything. So when it comes to custody and visitation, you have a position on legal custody. Why do you have that position? Are there certain pieces of evidence that overwhelmingly support your position that you should have sole legal custody? If so, marshal those, get them together, make sure that your attorney has them so that if you're talking with the mediator and they're trying to understand why you have that position, you can show them. For physical custody, you know, if the work schedule of one or both of you is material to what you're gonna figure out for a physical custody schedule, make sure you have that information. You know, for child support, make sure you have the income information, the health insurance premiums, the daycare expense, all of the things that go into a child support computation typically. Make sure that you have a full accounting of the property and debts that need to be divided between the parties. You need to know what those values were if they existed at the date of marriage, at the date of separation, and now at the time of mediation. What are these things? You don't want to miss anything. If you haven't already done it, you should run a credit report for yourself. You get a free credit report every year from the three major credit reporting agencies. You can go to annualfreecreditreport.com. It's a government website, although it doesn't sound like it. And you are able to see exactly what is in your name, what accounts there are that are listed in your name, what debts there are, and it's a good idea to check that to make sure that you're not missing anything, that someone didn't open up an account in your

Budgets, Alimony, And Reality Checks

Ron Gore 8:00

name, or that the debt hasn't swollen and you weren't aware of it. If you're going to be asking for alimony, you need to have a budget prepared. Because typically, alimony is something that is based on need. In most states, the growing trend is that alimony is transitionary, and it's meant to transition a person who has a financial need for alimony that arose from the marriage to get them to a place where they're financially independent. To show that you need that, you need to have your budget, you need to have a plan to be able to get from financial dependence to financial independence. So having all of these details at hand is helpful for you because it helps you assess the strength of your case. And if you have an attorney who I think approaches mediation properly, they're going to be looking for the mediator, who should be an experienced practitioner in the area, to give feedback on your case. When I'm going to mediation as the attorney for one of the parties, I tell my clients in advance: hey, one of the key things that we're going to do today is get feedback from the mediator on the strengths and weaknesses of our position. It's allowing your client to get a second opinion from a respected practitioner in the community who knows the judge so that everyone gets a reality check. Sometimes the attorney gets a little too wrapped up in the case. They lose perspective. Having a mediator around who can sort of check that

Settlement Agreements And Orders

Ron Gore 9:35

if they're willing to do so is a great benefit. And it's one of the things that I value about mediations. At the end of the mediation, if you're able to reach agreements on some or all of the terms, then there should be a settlement agreement reached. And in most jurisdictions, there'll be an agreed order approving that mediation agreement so that the court can put their stamp on it and everybody's locked in. If you have a settlement agreement, then that is a contract between the parties. If there's an order approving the settlement agreement, then it becomes an enforceable order of the court, and that's an important distinction. Understand when you go through mediation that if you were able to reach agreements on your own, you probably didn't get to mediation. So you're both going to have to come off of your original positions. And the extent to which you're moving in towards each other from your original positions is often referred to as the zone of pain. If you

The Zone Of Pain And Compromise

Ron Gore 10:34

think that you're going to be going into mediation, reaching agreements without having any movement on what your position is, frankly, you're deluding yourself. You're not setting yourself up for any potential success at mediation. The goal of mediation is to help both parties reach agreements that are in their children's best interests, that are fair and equitable to both of them, and is something that they can live with. The psychological, the emotional, the financial toll of continued litigation and trial is extreme. I've seen many people spend more than they make in a year on a divorce, and that's just money going to the attorneys when that money could be used for themselves and for their children. A key thing that I think most people don't understand, because it's not readily apparent, is that most family law attorneys do not try their divorces, do not try their custody cases. They settle them. They settle them because they value their privacy, because they understand what the court is going to do. They understand that you're not going to get the home run. It's going to be something that is fair and equitable, hopefully, to the parties, and that means compromise. So family

Why Lawyers Settle And Final CTA

Ron Gore 11:51

law attorneys typically settle their cases rather than taking them to trial. Think about what that means. If it's what they do in their own lives, then maybe that's what you should be thinking about too. Give mediation a chance. If you found this content helpful, please share it with others and comment if you have uh any sort of experience with mediation. Please make sure it's anonymized for your uh privacy. Thank you for joining us and I hope you have a great day.