Family Matters with REESELAW Podcast

Episode 2: Introduction to Mediation

In this episode, we discuss an overview of the mediation process and what to expect when using this path to resolution.

 

Transcript:

Catherine Reese: Welcome to Family Law Matters with ReeseLaw; we are a family law firm based in Fairfax and serve in Northern Virginia and Montgomery County areas. In our podcast, we are going to discuss current topics for families in transition from Premarital Agreement to divorce, custody and visitation. I'm your host, Kate Reese, and joining me today is one of ReeseLaw associates Christine Hissong. We are both Supreme Court certified mediators for Family Law matters in the circuit court, and we have both been practicing law for more than 20 years.

In this episode, episode two we are discussing mediation. The material contained in this podcast is not offered nor should it be construed as legal advice. The material in our podcast has been prepared and published for informational purposes only. You should not act or rely upon information contained in these materials without specifically seeking professional legal guidance.

Christine Hissong: Okay, in your introduction, introducing this session talking about mediation, you mentioned that you're a certified mediator, what does it take to be a certified mediator?

Catherine Reese: A lot of education to get the initial certification on the highest level, which is family law and circuit court. You have about two and a half weeks of full day's classes that you attend that cover everything from domestic violence to support, equitable distribution, custodial issues, property division, a whole host of matters. Then after that, we recertify every two years and that requires us to have 10 hours of continuing mediation education, two of which must be ethics.

Christine Hissong: Okay, and do you think that there's any benefit to using a certified mediator as opposed to a mediator who's not certified?

Catherine Reese: I do, because there are things that we learn about in class and while I'm sitting there as a family law attorney, as were some others, there were certainly people that were going into mediation as a line of work and did not have any legal background or any family law background. So while it may be the basics to start, the recertification, and the fact that we are required to handle a certain number of cases, during every recertification period, helps keep us very sharp on our skills. And then in family law, we have the added advantage of working with families and seeing what works, seeing what doesn't work, seeing how the courts may or may not handle a particular issue. So we tend to be much more educated than somebody who is not certified and certainly much more educated than somebody who is not certified and is not a family law attorney.

Christine Hissong: Okay, and what would you say about benefits if anything about using an attorney mediator, as opposed to a non-attorney mediator?

Catherine Reese: Well, I may be biased. As I said, I'm a family law attorney. But we've had people bring us agreements that came out of mediation and wanted us to fix them, but they were already signed, and there was nothing that we could do about it. There are some common areas that non-practitioners of Family Law, do not consider or include in their agreements that can be very costly mistakes. Once the contract is signed, regardless of your representation, regardless of who assisted you with it; once two people sign a contract in Virginia, that contract is binding and it can be very difficult to overturn. Reasons for it being overturned, do not include I don't like this anymore, or something should have been included. If the other side says no, you have a true dispute and you're the one who's on the outside of the contract. So we do pay attention to details that other mediators would not pay attention to. And we look for longevity in our contract also I must say. So when you are looking at a circumstance where we have young children and the progression of the children will change over time, they will start going to elementary school, they will go to middle school, those things can all change what the custodial plan is. And we can do a pretty good job of doing some advanced planning on that which will keep you out of court and allow you to know what the rules of the road are for your case by looking up the section that's relevant and seeing what your choices are.

[00:05:00]

Do you go back to mediation to resolve something? Or what is your process? So we often write in what is the process in the event that there is a dispute, so that the client knows what to do, and hopefully can do it at a lower cost.

Christine Hissong: I see. Okay, so are you saying that when parties enter mediation, that the mediator tells them everything that they need to talk about? Or tells them what issues need to be raised? Or what information would go into the agreement?

Catherine Reese: We don't tell them, but we have a conversation with them that's very open and honest. And it really starts with why are you here today? It could be a custody dispute that is with parents that have been divorced for years, it could be an initial temporary separation, it could be a prenuptial agreement, it could be a divorce and I'll use that example not because it's the most common, but it's pretty comprehensive of the issues. Because there we need to work out a custodial schedule for the children, we need to calculate support might be spousal support, but certainly there's always child support that needs to be calculated as required by the court.And then you have property issues and debt issues, all of that has to be gotten into so if somebody said to me, "Well, we don't really have much." I'll say, "Okay, do you have a house?" "Oh, yes. We have a house." "And do you have cars?" "Oh, yes, we have cars." "Do you have children?" "Yes. Two."

So there is something that has to be written around all of those. And here's another example of where being a family law mediator comes in handy. That house, how was it paid for? How was it bought? Did somebody take an inheritance? It's beginning of the marriage and put it down on the house, which might change whether it's divided 50/50 or some other way. So the devil is in the details, that is always the case. So we ask questions. Until we get there, we don't make people talk about things that they don't want to talk about. But I think once or twice, I've had to say, if it's not included here, the courts going to have a hard time accepting this agreement, because it doesn't address anything about the children, for example, the court would not consider the case to be finished at that point. So and we try to help them avoid potholes, essentially, by making sure there's enough detail in there, that you know what you're doing, because on Christmas Eve, you're likely not going to get a judge on the phone or in person, if there is a dispute about where a child is supposed to be. So the agreement needs to be clear. It can have flexibility, but you need to know what to do when there's a dispute.

Christine Hissong: Okay, so it sounds like parties would be safe or they should feel somewhat comfortable coming into mediation, even if they really don't know all of the issues involved in resolving their divorce case, or their custody case or whatever type of Family Law situation. They're mediating.

Catherine Reese: Yes, really, everything, everything can be up for mediation, because as a mediator, I'm a neutral. I'm in an alternative dispute resolution process with two people who don't want to be in court and would like to resolve the problems on their own and mediation is all about self-determination. I don't make decisions. I give you information, I might pair up information, I might say, "Well, how do you think the other side will respond to that? Or what roadblocks do you foresee?" And we work through the issues together. Without question, it's a joint project.

Christine Hissong: So you may have had the conversations or the experience that I have had with people where they say, well, as the mediator, you'll be looking after me, and you'll let me know if it's a good deal for me or you'll make the decision, and you'll tell us what we have to write or what we have to decide. Have you had those types of discussions or comments made to you by mediating parties?

Catherine Reese: I have and it does come up. So I have to clarify the position that I'm the neutral, which means that I don't advise either. What I can do is give a copy of a statute and I can even if there's confusion about what it says I can explain what the statute says while sticking to the statute.

[00:10:00]

But I'm very clear about the fact that it's their decision to makeand a good deal versus a bad deal.The person who wants chocolate and gets vanilla got a bad deal. So it's very personal to the persons that are in the mediation process and we really cannot answer that for them. Although we do recommend that they see an attorney before executing, and that attorney can assess it independently, and help the client understand whether or not it was a good deal for them.

Christine Hissong: Okay, so if they want legal advice and they're having attorneys, give them advice through the throughout the mediation?

Catherine Reese: They can do that. Some people come in, and they've already been working with an attorney for quite some time and the agreement has been born through that process. And they may want an independent review by me or they may have that lawyer do an independent review sometimes, but I'm just in the role of being a family law attorney as I was this morning, I was reviewing somebody else's mediated agreement to see if I had any changes or adjustments to it. So we can wear multiple hats, but we can't wear them at the same time.

Christine Hissong: Is there ever a time or how do you handle whether or not the partys attorneys actually come to the mediation? Or what is their level of involvement in the mediation, if any?

Catherine Reese: What can be done and is done and including here at ReeseLaw, sometimes we'll have a client who does not want the attorneys at the mediation becausethey like the appearance of it being just the two parties working on it, they are concerned about the other counsel, mocking up the deal or not being co-operative,they may have a lot of different reasons they can come to us as just two parties and if we come to a roadblock, that's significant, I will ask them, if we can have the attorneys involved in the next session. I've never had anybody not agree, because I only do that when we have an absolute disagreement on the law, or the facts more often the law. A person told me that, by law, she had the right to stay in the house for six more years. You will not find that anywhere in the code of Virginia, there is no such law. But she felt that that was accurate, and was relying on that. So I needed her attorney to come in and so both attorneys came into the next session. And that was the session where we finished, we got everything else taken care of put a bow on it, and they're ready to go.

Christine Hissong: So when you are representing your clients, as an attorney, and they're involved in mediation,how do you support them as they're going through mediation?

Catherine Reese: If we are not attending, and oftentimes if we are, just the same, we will do a pre-mediation meeting with the client, walk through what does the client want? What are their realistic best choices ever? And I can live with this. There are two categories and prep them for the mediation so that they know, child support should come out to be approximately this amount of money; if you hear a different number than that would want to figure out why that number is different or just other details that we would do as lawyers. Like if you have a complicated piece of property where husband put money and the wife put money in and then there was another financial transaction and then husband took money out. That's called tracing. And we would do the memorandum on tracing to fully explain it to the client so that they could speak on their own once they're in session. And then we do recommend that they not sign anything, and that we see the document before it's executed. And, again, address any details that might have been missed, such as tax consequences. Tax consequences can be very consequential, very.

Christine Hissong: So it sounds like in making decisions even in mediation, the parties really need to have some information about, well I guess first what they would like to see as an outcome, but then information about their assets and their debts really just sort of have a good awareness of their financial situation in the family.

[00:15:02]

So what if I'm a party coming into mediation, and I've not handled any of the family finances, how do I get that information in order to make those decisions in mediation?

Catherine Reese: All right, if at all possible you would get that information beforehand and the short version is that you will be signing an agreement that says there has been full and complete financial disclosure and both sides need to make that disclosure and they have to share their information. Because how do you know if you have a good deal or not? If you don't know what the issues are, people could agree to $3 million for spousal support, because they thought that they were basing it on being together 27 years, the legal marriage was three years, $3 million on three years would not happen in the Virginia courts. So we do the prep work with them in advance to try to get them ready to go and that includes working with the other counsel and saying, "These are the list of documents that we need before mediation can start." Because when you go into mediation, and ideally, you do have everything that you need, that's best, but otherwise, in the process, we reiterate full disclosure. If you keep anything back, you're inviting future litigation.

Christine Hissong: As the mediator you're letting them know that?

Catherine Reese: Yes, yes, just that it may happen, because it's not been addressed. So you don't get to leave something out and just hope nobody notices; usually, it's discovered.

Christine Hissong: I think that you touched on it a little bit. But for the person who sort of doesn't want to disclose the information. If I'm that person, and I know that going into mediation, the mediator or my counsel is going to say, "Well, full disclosure and mediation." Why would I go into mediation then, what would be the benefit to me as the person who's sort of reluctant to share that information?

Catherine Reese: Well, the biggest incentive you would have is to stay out of the courthouse, because the other side can file a case and proceed with issuing discovery, which is questions that you answer under oath and documents that you produce and there can even be subpoenas to your employer or other people where they think there might be money and all of that would happen in the course of a litigation. So it's not a question of if, it's a question of when, and it's going to come out. So it's cheaper to just go ahead and do it in the mediation process because the litigation process is more expensive for that question.

Christine Hissong: Sure. Well, that makes sense. What about so if the parties come in and they either have knowledge about their assets and the debts or they're lacking some knowledge, but that's okay with them and they say even though this might not happen, if we were in court, or even though I don't have all of the information, this is the agreement that I want in place. What happens? Does the mediator, advise them about that? Or is that a role for their attorneys?

Catherine Reese: That's tough. If we see an agreement, that's a bad agreement, essentially, there's some missing part to it, or there's a great disadvantage that we're seeing in it, then we would definitely suggest that they review it with their counsel. If they do not want to review with their counsel, if they just want to do it, we cannot go into giving legal advice such as this is this is unconscionable, this is why we cannot do that. What we can do is share with them that it's a contract, they'll be bound by the contract and that we strongly urge them to see an attorney. And I think pretty much I've had to say it three times they've gone. So sometimes it goes that way because people think of the attorneys as being difficult rather than the helpers that we are, and they see mediation as being easier. It is easier, but its kind of like building a house without a foundation. If you don't have the information you need. How do you make the right decision? How do you know that that's a good idea? So we do have to refer them toback to their counsel for that.

[00:20:00]

And that might be a point in the mediation where I'm saying, I think we need to have counsel present for the next session.

Christine Hissong: So once the parties do reach an agreement, what happens next?

Catherine Reese: Well, besides all the congratulations and good wishes, we can give them some telephone numbers and names of attorneys that can handle an uncontested divorce. It's not complicated. But our ethics rules do not allow us to serve even in the simple process of an uncontested divorce; we are not allowed to serve as the counsel for either one of them. Oh, no, you're doing it for us both. Not really. There's a pleading. And if I wrote the pleading, I would be the plaintiff's attorney and that makes me an advocate, not a neutral. So we do have a list of attorneys that we know of that are pretty low on the rates that can take care of getting an uncontested divorce done. Not everything needs to be done at a high rate; you always have to assess what is the job that you're asking for? How important are the topics to you? And what actually needs to happen? So we would actually talk with the attorney that were, "Hey, can you assist with this case? It's an uncontested; we've got a signed agreement via mediation." Usually the answer is yes and they get it done.

Christine Hissong; A couple things, I could imagine that some people might be confused and think that when they sign an agreement with the mediator, or whether they sign it in their attorney's office, that that means that they're divorced, if it's a divorce case, and that's not accurate; I'm hearing?

Catherine Reese: No, no, the contract is a contract, and it stands on its own. But if you would like to get a divorce, you have to file and one party has to file a bill of complaint for divorce and then there's some intervening paperwork, that's important. But then eventually, the final order of divorce goes into the court, and the court has the agreement, and a judge signs off on it, then you're divorced, and then your agreement is incorporated into a court order, which means that the court has the authority to enforce your contract. So if somebody does something they shouldn't be doing, you're not fighting contract law at that point. You're working from the order because that's both the contract and the order, it's stronger.

Christine Hissong: And as the mediator, you can sort of discuss with the mediating parties what this process is, even though you can't do the court filings, it's okay for you to sort of give them the roadmap to what they have to do next?

Catherine Reese: Yes, these are things that are simply found in the manuals of the local courts, rather than make them go find it, we just go ahead and fill them in.

Christine Hissong: And so after the agreement is signed, whether or not the parties are divorced yet, if they decide that they want something changed with their agreement, or they've just been talking more, and they want to add something else, is it possible to come back in to mediation to do that?

Catherine Reese: Absolutely. Absolutely, it would be done as an addendum and it would change the terms. However, both parties agree to change them. Although as I was mentioning earlier about the longevity of a contract and the longevity of any mediated settlement. We do try to build in things like if there's an 11 day break at Christmas, how do we deal with the odd day? If somebody has got travel, how is that addressed? Is there makeup time? Or is there not makeup time? So we really just put them through the process of thinking through these options. Some people will assume for example, on makeup, well, of course I get makeup if I don't have my time with my child as scheduled. And the other side says, of course you don't you canceled, why would I change my schedule? So we try to get as much as we can in the upfront agreement, but life does change. People have job transfers, children get older, and with changing income support can change. So addendums are quite appropriate for that and if needed, they become a part of a court order immediately and sometimes they come become part of a court order later when either party wants it to be, it's supposed to be in the court.

[00:25:00]

Really, but I know that people sometimes take their time in getting it done.

Christine Hissong: It sounds like there is some anticipation or some anticipating of issues that might pop up in the future and as a mediator; you're able to sort of address those with the parties now, when they're mediating.

Catherine Reese: Yes.

Christine Hissong: To save them some grief in the future, I guess.

Catherine Reese: And money and time and angst and all of those things. I was just talking to somebody who had shared a mediation agreement that was written for the child as though it spanned all 18 years of the child's life. And it was written around a circumstance that was going to be in existence for two years. So we talked about how that should be modified while it's still in draft form, with the mediator to require a review, once both parties are differently situated in their careers, and a certain amount of time has passed. So one thing we can count on is children will get older.

Christine Hissong: Sure. So what would you say is, in your opinion, just the best reasons for someone to use mediation?

Catherine Reese: If they can communicate with the other party, and they have even a modicum of trust, that can be really useful. I think mediation primarily is used by people who want to stay out of the court system and there are certain things that can go on in the world that will impact the court system, such as availability to hearings, you can get in with a mediator a lot faster than you can get before judge. And it may be something about who's going to hold the passports and somebody is about to travel and somebody is concerned about them coming back, you can get a hearing this Friday or next Friday for something like that for example. It's a time saver, it's cost effective, and your counsel can be involved, if you want your counsel involved and same for the other party.

It gives you an agreement that is based on what you want, rather than what a judge decides you should have, you really want the red chair, and the judge just gave you the brown couch; you didn't want the brown couch. So this way you get to be particular and go for what it is that you want thats within reason. And a lot of the times there's really not a lot to disagree about and the courts just don't know everything that you'd want them to know because mediation takes however long it takes, it's up to the parties. Court, you've got a finite amount of time on a trial day. A trial day is no more than six hours; you've got a finite number of trial days you're going to get a lot because of what's going on in the world; schedules and calendars are up in the air. I think the best thing about it is that people can walk out of mediation feeling pretty good about what happened and feeling like they were heard and that they got what they were looking for out of the process. That is not usually how court goes, court is unnecessary evil. We litigate when we have to, some things people just are never going to agree upon. But with mediation, they can leave and they can continue their co-parenting relationship and continue to have whatever social ties they choose to have. In litigation when you have to tell the judge every rotten thing that ever happened, so that you can make your point as robustly as you would like. The possibility of ill will is right there and that makes the co-parenting that's going to come a lot harder.

Christine Hissong: I guess really in any time but presently, there are a lot of people that are uncertain about their employment and their income and things like that and so it can be extra stressful. So for people who maybe have these financial woes, they don't really have the money that it would take to litigate. Is mediation also a little easier on the resources?

Catherine Reese: Oh my God, yes. There might be attorneys involved in advance to get the information together on the assets and debts and things along those lines.

[00:30:00]

But individuals can do it themselves, they can bring what they have to the mediation, share with the other side and if everybody's happy with the production, we don't have to get into discovery and all of that. Sometimes mediations can go on for a while. Other times, they're pretty quick. So it's hard to estimate the cost. But honestly, I think that it's very rare for mediation to cost much more than just one piece of litigation and that's the discovery process. That's when we issue subpoenas, that's when we pursue documents and pursue information. So if that part can be done co-operatively, because it has to be done, it can really save a lot of money. And the court, we have to be prepared for everything when we go in and you don't know what's going to happen. So you've got your witnesses, and you're asking people to take time out of their work day to come into court and hopefully, they're going to say exactly what they said to you before, we hope, and it's just incredibly stressful. It's pretty hard for not to be stressful for a litigant because it's walking into unknown waters, and coming into my office is a lot more mellow and easy to handle than it is spending 15 minutes trying to find a parking space, then going into a building going through security and knowing that everything's on the line, as soon as the judge hits the bench, and you start putting on your case; expensive and more drawn out, yeah.

Christine Reese: Well, thanks, Kate. It sounds like they're really a ton of good reasons for parties to choose mediation, and for both no matter what the situation is. So hopefully, that will help people to sort of sort out some of the information and what mediation is all about and why it might work for them.

Catherine Reese: Yes.

Christine Hissong: So all right, I appreciate you sharing all the information with me today, thank you.

Catherine Reese: Thank you. I enjoyed talking with you.

Thank you for joining us today on Family Matters with ReeseLaw. Please subscribe to our show so that you never miss an episode. You can visit our website at www.reeselawoffice.com for more information. We hope you tune in next time when we will talk about the collaborative practice of law as well as mediation in episode three. Thank you for joining us.