Show Notes:
Thacker Sleight attorneys provide essential insights and perspectives whether you're contemplating mediation or just seeking to understand how it works.
Note: Always consult with a legal professional about specific circumstances and cases.
Episode Highlights:
00:00 Introduction
00:28 What is Mediation
01:31 Mediation vs. Arbitration
02:20 Preparation for Mediation
03:05 Creative Solutions in Mediation
05:00 Formats and Styles of Mediation
07:00 Confidentiality in Mediation
08:27 Practical Tips and Advice for Clients
10:00 Setting Realistic Expectations
12:03 Partial Success in Mediation
13:00 Selecting the Right Mediator
14:51 Documents to Bring
Read the Full Episode Transcript:
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Podcast Host (0:03): This Thacker Sleight podcast is hosted by Connie Thacker and Allison Sleight, two experienced attorneys who believe honesty, transparency and knowledge are key to achieving the best legal outcomes. A variety of topics, particularly those related to sensitive family law matters, are candidly covered by Connie and Allison, other Thacker Sleight attorneys and guests in a refreshing, timely and practical way for listeners.
Connie Thacker (0:29): Thank you everyone for joining another Thacker Sleight podcast. I have with me today Allison, Courtney and Emily and of course Corey and we're going to talk to you a little bit today about mediation. Mediation is a process that the court requires you to go through. So we have clients who call us and say, I really don't want to go to mediation, I just want to go right to court. Well, that's not really an option. The court is going to make you go to mediation and they do that in part because we know that people who make their own agreements have a tendency to follow their own agreements and the other reason is that the court system is filled with cases and if we can mediate them and settle them, that's what the court wants us to do.There is a big distinction between mediation and arbitration, which I think is important for everyone out there listening to understand and that is mediation is a non-binding process. So you go to mediation to try to make your own agreements as opposed to arbitration and arbitration you're essentially hiring a judge who will make a decision for you. It's a less formal process. The rules of evidence and getting documents admitted generally don't apply, but you don't really have a lot of appeal rights afterwards. So our team today is going to talk to you a little bit about our insights to mediation, some pros and cons of when to do it, do it early, do it late. You oftentimes have to do it multiple times and we're going to have a little discussion too about Zoom mediation.
Allison Sleight (2:04): I think one of the biggest things for clients to know about mediation is it's not a trial and you don't have to prepare for it like a trial. There won't be witnesses there. You don't have to prove your case to the mediator. You don't have to bring evidence with you. The mediator is simply there to facilitate an agreement. So when we're talking about settling, we're not talking about all of the intricacies of your case, what's going on, all the good arguments you may have, all the weaknesses in your case. We're just talking about what is going to make everyone equally unhappy.
Courtney (2:35): Yes, I think that's a perfect way to explain it. And I think that just to go off of that, mediation is a fantastic place to get creative. It's a fantastic place for you to come with your ideas of what's going to work for you. Talking about parenting time, sometimes the schedules that attorneys and judges come up with are not going to necessarily work for your case. And so it really is a nice place to be there to have some ideas, come with ideas of different ways to resolve things.
Emily (3:05): And to Allison's point about the fact that this is not a hearing, this is not a trial and the rules of evidence don't apply, it's very important to remember in preparing with your attorney for mediation because you might feel confused initially if you're treating it as a trial or a hearing, wondering why your attorney isn't getting witnesses together, why they're not asking for documents. It's because once the basic financial information is in place and a general idea of what you would like with a parenting time schedule, some of that stuff we don't need quite yet and we are trying to avoid the trial. So even though it may seem like the mediator is there to make a decision, the mediator is only there to help the two of you make a decision. So spending a lot of time and effort trying to convince the mediator of something isn't necessarily the most productive way to look at a mediation.
Corey (4:02): And kind of going off of that too, mediation is used for people with kids and without kids. So if we're doing a mediation without children involved, then mediation becomes much more administrative in that we're just dividing property and it's a lot less heated, a lot less opportunity for argument. So it's a good opportunity to save court costs by just going through the process through the mediation than actually going through the whole court procedure. If we could settle it early, that would be better for everyone.
Emily (4:31): And to Courtney's point too about getting creative, that's another thing for people to understand with mediation is that there are lots of different formats. Nowadays, we're doing a lot of mediations by Zoom. Sometimes that helps just with logistics and keeping costs down for attorney travel, things like that.There's also different styles of mediation in person where you are doing this caucus or you are in the same room. So in some circumstances, the mediator will shuttle between one room to the next and kind of keep the parties in their separate corners. Sometimes that can be really effective to help keep emotions a little bit lower, but it does take a little bit more time. So every case is very different. If you have a case where the two parties are relatively amicable with each other and emotions aren't as high, it sometimes makes sense to get together in the same room to sit across the table and have the mediator facilitate those conversations in real time. But if it is more of a high conflict case, we definitely do see the shuttling back and forth. And you can always talk to your attorney about that in advance, how you feel comfortable, if you will feel comfortable in the same room or not. So the format is something that we can be very creative with as well.
Courtney (5:43): And I think either way of however you end up doing the mediation, it's important that clients know that you can always ask us questions. If you have a question about what's happening or don't understand some of the lingo, please ask because we do this all the time. So sometimes I think I tell people this a lot of times I say before I was an attorney and maybe we shouldn't broadcast this, but I didn't even know what emotion was. And I like to think that I'm pretty smart. So that was in my life before being an attorney though, that was not something that I dealt with. So if you feel like you don't understand what's going on, please ask. And that goes for even if you're in the same room, if you decide beforehand that you're going to be able to streamline things and everybody be in the same room, please always feel free to say, you know what, I just need to ask my attorney something and you can then do a breakout and then caucus. So remember we're here to help. I think that's the big thing there. We're here to help. We're here to make sure you understand what's going on. We want you to make informed decisions.
Connie Thacker (6:51): So the reason I really like mediation from my perspective is I always like to learn what the other side's position is. And mediation gives you an opportunity to do that. You get into mediation and you'll know real quickly, is custody really going to be a battle? Is parenting time really going to be a battle? Are we really going to fight over separate assets? Are we really going to fight over business valuations? And that'll give you some insight as to what the other side is thinking. And I think also you have to remember that mediation is a process. You're probably not just going to go one time and it's all going to be completed.Particularly if you start pre-litigation mediation, meaning you mediate before you file the complaint or if it's a high asset or a high conflict case, you're probably going to go to mediation multiple times.
Allison Sleight (7:42): The other thing to know about mediation is that it's confidential. So anything you don't want the other side to know, carrying off of what Connie was just saying, they don't get to know. The mediator won't take that into the other room. Or if you're in the same room, you can step out with a mediator and discuss some confidential things like how much you absolutely hate your soon-to-be ex in very colorful language, however you want to phrase it. That would be an appropriate time to do that. Another appropriate time to do that was a situation I had a couple weeks ago in which my client showed up to mediation drunk. So I definitely wanted that fact to be kept confidential from the other side. And we did our best to just kind of muscle through and then tell them that we would be back for another day, a sober day.
Connie Thacker (8:27): Well, which leads us into the question, and we can all sort of have a comment and opinion on this too, of how clients should prepare for mediation. And one thing is don't over-medicate yourself. Don't over-stress yourself. It's a process that we're trying to come to an agreement on. And a lot of our clients, and rightfully so, are very nervous about going to mediation and getting into the mediation process. So just in general, how do you guys think that people should prepare for mediation?
Allison Sleight (9:01): I think the biggest thing is to help your attorney have information on values and the tax effect of those values. People don't consider that. And if you're making a lot of progress, you're going to want to know if you receive X, Y, and Z, what's the tax effect of that. So bringing your accountant and getting them involved, knowing your support obligations and what those look like are all good things to have in your pocket.
Emily (9:22): I also think that if you are feeling particularly nervous or stressed out about the mediation, to contact your attorney if your attorney hasn't already reached out, just because of time constraints. And ask to have a meeting, have a pre-mediation meeting, even if it's just by Zoom for half an hour or a phone call, because a lot of the things that you might be sitting there stressing out about are simple procedural things that five minutes with your attorney might be able to help alleviate some of those stressors. So you understand a little bit more about the process and what's going on. But I also think that to lower your stress level, it is really important to keep in mind that this is not a trial. This is more of a conversation. We're looking to reach a settlement. You don't have to settle. If you don't feel comfortable settling, you don't. We often do reach agreements. It's usually successful. But this is not the end of the road necessarily. So you don't have to put too much pressure on yourself.
Corey (10:22): And kind of bouncing off that too, I think clients really need to understand that they need to go into mediation with the right headspace. The goal is to agree to something. Nobody wants to waste time, energy, money into dragging on a divorce when you guys already decided that it's not going to work. So I think it's really important to come to mediation with tempered expectations that you're not going to get everything that you want, but you're going to get everything that you need.
Emily (10:45): Well, that's exactly right with Allison's point about is everybody equally unhappy? That's a good way to explain it to people that mediation has been successful if you both feel like you lost something because nobody's ever going to really walk out of there, realistically speaking, like you won every issue and you have everything you want. So really the analysis is more akin to, can I live with this? I don't love it, but can I live with this? And if you reach an agreement that you can live with and you can move forward with at mediation, that's really what we're seeking to achieve.
Courtney (11:20): Well, and I think that it's important to note that mediation can go a couple of different ways. Like Connie was saying, you can have multiple mediation sessions. Allison's situation, there are going to be multiple sessions. I also think that it's important, you can figure out resolutions to some issues and then not others, and that's still a successful mediation. It's still a successful mediation if you go in and you can hammer out custody, parenting time, and some of the assets, and maybe you're not going to have a resolution on spousal support or something like that, but that's still a successful mediation because it's narrowing down the issues for trial.
Emily (12:03): Exactly. If you can get everything whittled down to one or two issues and those are the only issues you have to put in front of the judge, then mediation has certainly been worth the money because that's another issue, too, that I feel very strongly about. A lot of people, when they resist mediation, I think are worried about the expense of it, but I would swear down, up, left, and right that it usually ends up being far less expensive at the end of the day to have a mediation session or two than to run several days or a week of trial and to bring in exhibits and witnesses and things like that. It also helps keep control. Any issue you take to the judge, whether you have the best judge or the worst judge or something in between, you put that issue in front of the judge and it is the judge's decision. Even if you don't get the exact agreement you want in mediation, you are keeping more of that control for yourself.
Allison Sleight (12:57): I think we need to talk a little bit about this mysterious mediator and who are they, right? We just keep saying mediation and mediator, and that's someone that you're attorney and you get to select. Certainly, when we have multiple sessions, you could decide that that mediator is not a good fit for you.For instance, I had a client last week, and we were all the way through mediation. We didn't resolve all of the issues. We were planning to go back, and she said, I really didn't like how he told me, well, you married him. So she found that very belittling, condescending, and so she doesn't want to go back to that particular mediator, and I can understand that. So we can always select someone else if it's not a good fit.
Connie Thacker (13:33): Yeah, that brings up an interesting story of a case that I had once with a mediator, and they're not all perfect by any stretch of the imagination, but I represented a very sophisticated, very well-educated wife in the case, and when we went into the mediation just as we were getting ready to leave for the afternoon and coming back, he asked my client if she was a baker, and her response was, no, I don't bake. I've got my career, and this is what I do, and we were like confused as to why would you ask if she was a baker, and he said, well, I thought maybe you could bake us some cookies for next time, which really did not go over very well with my client, and to say the least, when she came back for the next session, she brought him cookies and milk just to irritate him. Were they homemade? I don't think so, or were they laced with something, I don't know, but to Allison's point, mediators, we try to select based upon your personalities, the personalities of the opposing party, and somebody that we think is going to get us to an agreement, and I think one other thing we should probably talk about just a little bit is what documents to bring with you to mediation. One thing that our office always tries to do is have our asset balance sheet prepared, so it's a good idea for you to have a meeting with the attorney or a Zoom or a call or whatever to make sure all the assets and all the liabilities are on your asset balance sheet, and if you've got a spousal support claim, which is really helpful for us, is if you have your budget finished and prepared and ready to take to mediation. So, any other thoughts or ideas in terms of what documents people should organize to bring to mediation?
Emily (15:24): Tax returns would be very important to at least have provided to your attorney in advance.
Allison Sleight (15:30): I think it's really important on those property balance sheets, and it's a huge pain in the you-know-what, but it's updating the bank statement balances right before you go into mediation. You're going to have to do it as part of your verified financial disclosure, and then, yes, you are going to have to do it again before mediation, but I had a client the other week who was awarded the $30,000 in an account. Come to find out, the wife had already swiped $15,000 or so of that a couple days before mediation. So, when he didn't update the balances, we didn't know. I was able to fix it. I am able to fix most errors, but it just makes it more of a problem and a process, so that's really helpful.
Connie Thacker (16:10): Well, and I think that's a really critical comment, is that we do not have access to your bank accounts. Only you do. So, for them to get updated and us to have updated information, you have to put that together for us, and you have to pull those statements. So, it's very important, even with retirement accounts, because some people can go out and take loans against their retirement account, even if we have a court order that says that they're not supposed to, but the data and the information is critical, and we can't get it for you. You have to provide it.
Allison Sleight (16:42): One thing I would not bring is a friend. Mediation's confidential. You don't need your mom or your dad there, and a lot of times they'll be excluded anyways, so that would be on the do not bring list, but we can continue to talk about the bring with you list.
Corey (16:57): I also think a personal property list is important, because personal property is still property, but those items hold more sentimental value towards one party or another, and I think if you don't bring that to the table to let the other side know that you are interested for whatever reason in that certain property item, it could just go missed. So, I think that personal property, and especially sentimental items that you need to have addressed or that you want to make sure get taken care of in the mediation process, I think that that should be top priority as well.
Connie Thacker (17:29): One other thing that I would add to this discussion is I think it's really important for you to have an attorney at the mediation. Oftentimes, we have clients that go to mediation, and they try to do it before they've hired us, or they try to do it on their own, and then they reach these agreements, and they sign them, and we can't get you out of them. If you sign an agreement at mediation, you're going to be bound to it unless there's a way for us to try to get you out of it, and it's very rare that we can do that. And if they make a recording of the agreement that you put on the record, it's also binding on you, so you need to make sure that you're cognizant of that. And then, finally, the mediators cannot draft the final documents for you. They're mediators. They're not going to draft your judgment. They're not going to draft a confidential property settlement agreement for you. So, it's very important that you have appropriate counsel, and if you're not represented by someone at Thacker Sleight, you should be, because this is the A-team. So, on behalf of Thacker Sleight, we thank you for listening to this podcast on mediation.
Podcast Host (18:35): Thank you for listening to this episode of our Thacker Sleight podcast. If you have additional questions, do not hesitate to contact us at 616-888-3810, or visit our website, thackersleight.com, for further information.
If you’re considering mediation for your divorce or family law case, the experienced attorneys at Thacker Sleight can help guide you through the process. Our team is dedicated to finding creative solutions that work for your unique situation. Contact us today to schedule a consultation and take the first step towards a successful mediation.