Episode 2: What is Mediation? What is Collaborative Divorce?
This is The Listening Lawyers Podcast presented by Solutions Law Firm. We believe that all people deserve equal access to our justice system, as well as zealous, compassionate advocacy from a knowledgeable attorney regardless of the background or previous experiences of our clients. We focus on the integral well-being of the individual, family and community as a whole by truly listening to each client and developing an individualized program of advocacy specific to his or her situation and concerns. Through this process we strive to strengthen our community and offer hope to people in trying situations. At Solutions Law Firm, we believe in compassion, collaboration and equal access to exceptional legal services.
Stella: Hi everybody! This is Stella Roederer here and I am with Dawn Hernandez. Thanks for tuning in with us today for our second podcast ever. We’re really excited. Today we are going to talk about mediation and collaborative divorce. There are two topics that aren’t new by any means, but not everybody realizes they exist. Would you agree with that Dawn?
Dawn: Oh I would absolutely agree with that Stella. And I think even when people know that they exist, they don’t really know what they are or what they mean or the several different ways they can be used, especially with mediation. It is not a one size fits all. And there are lots of different times when you can use that within different case types.
Stella: Yeah, absolutely. So one little tidbit that I thought we would start with perhaps is that mediation in Iowa anyway, mediation is required for all family law and divorce cases. And I think some people when I tell my clients that you have to like why? We can figure this out ourselves. Why, why does Iowa think we have to do this? And people, I don’t know if you’ve experienced this, but some people may get, I think they dread mediation or they, or I don’t know if I want to say fear it, but it is not something that they look forward to. I hope if anything today Dawn and I really hit home that this is actually something that is really beneficial, and it is in everybody’s best interests. It is nothing to be afraid of because really one of the reasons Iowa requires mediation is that it allows people, the parities, the people who are not just going to divorce but then have to live in a world post-divorce, with an agreement that decides many aspects of their life. Like, that is the thing. If people can’t come to an agreement on their own, we have a judge that can decide, and that is part of the system and I think it is really, it is a good thing to have. But if you think about it, who do you want deciding your life? Because everything that goes into a divorce decree, it is not just a divorce and you’re done. It is a divorce and you have to live by this new sets of rules. And mediation allows both parties, whether you want the divorce or are part of the divorce because your spouse wants the divorce, it allows both of you to come to an agreement that your comfortable with. Or at least more comfortable with and that you’ve had a stay.
Dawn: Yeah, Stella, you know one thing that I have experienced a lot with my clients as they are going through divorce or trying to figure out a new custody agreement, anything like that where there is really conflict within their family and they are trying to make a decision. As they really have the same view, everyone has the exact same view of what the process will look like. We are going to start it, we are going to try to agree on our own. If we don’t agree on our own, we are going to have to go to court and fight. And we are going to have to bring out all the dirty laundry. And we’re going to be dirty and mean. And then the judge is going to tell us what we get. And they don’t seem to understand that there is so much in between those two things. And one of the really important things between those two, between a perfect agreement that we all get to on our own without any trouble or fighting it out in court in front of a judge is mediation. And really the purpose of mediation is to look at the two parties, let’s say in a divorce, and say you know what, you guys have done so well, you have come to an agreement on three out of four things, we still have the fourth thing that we can’t agree on. So let’s set up an environment and a situation where both parties can be heard, where we can really focus on means, and the underlying attitudes and reasons for why we are holding on so hard to each position that’s opposed to the other side, why we’re willing to keep fighting over this and see if that way we can come up with a better understanding of each other, a better understanding of what the end result will look like, a better understanding of each person’s priorities and their ultimate desires and what they are hoping to attain through this process so that we can keep some of that control. You know, once you go to trial, the judge has the control, and that is what I explain to my clients all the time. Yes, the law stipulates what you are entitled to, and what your spouse is entitled to. And a judge will follow the law and will give you what you are entitled to and will not give you what you are not entitled to. So there is a little bit of an ability to go into trial knowing what you’re kind of likely to come out with, if that makes sense. But at the same time at the end of the day, the judge has all the control. And you have to try to be persuasive, you have to be willing sometimes to talk about things you otherwise wouldn’t and the whole process of trial can sometimes be much more painful at the end of the day than the tiny little thing you were fighting about in the first place ends up being in the whole, big long story of your life. Right? And so I tell them why are we giving that control to the judge? Does the judge know you better than you know you? Does the judge know your children and their needs? Does the judge know your soon to be ex spouse better than you do? Is the judge going to be there on a day to day basis for the next fifteen years until your three year old graduates from high school helping you manage the day to day? Of course not! Are the legislators? Are the people who wrote the code? Are the previous judges who figured out the case law? None of those people are going to be there. If you and your spouse are at odds, you are still the ones who are best situated to come to an agreement here. So, mediation provides a really great framework for doing that with low conflict where both parties can be heard, and you can really boil down to what the real issues are underneath the arguments.
Stella: Yeah, absolutely. That is something I consider the cold side of the law. You know, these laws are here for our protection in the long run, whether or not we agree with them. But the truth of the matter is, just like you said Dawn, the legislators, while they live with the laws they make, absolutely, but in this case with a divorce, they are not the ones going through it with you. And the judge who ise going to make the decision, he or she doesn’t have to live with it the way you and your spouse, and if you have children, your children have to live with it. So mediation, yes, it is required, but don’t think about it as a requirement because it is in your best interest. You have the control like Dawn said, you have the chance to be heard. You have a chance to be heard in the courtroom but it is different. You get to be heard in a different way. You get to be heard without the rules of evidence, you get to be heard like, no I don’t understand, please explain that more. Or you have the chance to be asked questions that you might not be asked in the courtroom. I know you want this particular piece of property, why? Why is it so important? It would be better for both of us if we sell. Or any type of example that you can come up with. And that’s really I think one of the major benefits of mediation is you’re heard in a way that you feel heard. And there is a difference there, right.
Dawn: Oh, absolutely.
Stella: You will be heard in a court of law, most likely through your attorney, but you will walk away from mediation having felt heard.
Dawn: Yes, absolutely. And you know one thing that I use, I use an example that was given to me during my training to become a mediator, shoutout to Chris Kurley out at Kurley Mediation Services, but this has stuck with me ever since and I use it with my clients. And it is the analogy of the orange. Let’s say you’re a mom and your daughter comes in and says, “Mom can I have that last orange?” And your son comes in and says, “No, I want that last orange.” Now, in a courtroom, if you’re a judge, you are going to look at that and say, both kids want the orange. They are both entitled to the orange. There is only one orange. We are going to cut the orange in half and give half to the daughter and half to the son and now everybody gets half of an orange. Now both daughter and son walk away super frustrated because nobody listened to what they wanted, what was the goal. Now in mediation, as opposed to telling daughter and son you each get half an orange, that is what you’re legally entitled to, take it and walk away, we say, “Okay daughter, in a room by yourself, where brother doesn’t have to hear, what are you planning on doing with this orange?” And she says, “Oh well I was just going to squeeze out all the juice. I need exactly one orange worth of juice for a cake I am going to bake.” Cool. OK. Great. “Son, in another room where sister can’t hear, what are you planning on doing with this orange?” “Oh, I just needed the peel, I am going to grate it up, and I’ve got this other, I’ve got these muffins that I am going to make that need grated orange peel.” Huh! Interesting! So daughter needs one whole orange worth of juice, son needs one whole orange worth of peel, neither need the entire, entire orange. Now we can give the daughter all of the juice and the son all of the peel and they are both whole.
Stella: Everybody’s happy!
Dawn: They both have exactly what they wanted. Yes! Everyone’s happy, nobody loses. But if you went to a courtroom a judge is not going to ask that question. He’s not going to.
Stella: It is going to look less equitable, because equitable is half an orange to son, half an orange to daughter.
Dawn: But you can both get the whole orange! You can both reach your goals but you have got to have that conversation and mediation sets up the framework to have those conversations with as minimal of conflict and distraction and argument and emotion as possible. So maybe now is a good time to talk about what mediation looks like.
Stella: Yes! I was just going to say that because you started to talk about it when you mentioned talking with daughter in one room and son in the other room. How does mediation actually take place Dawn?
Dawn: So that kind of depends on the jurisdiction and even within the state of Iowa, depending on which court district you are in, the practice is going to be somewhat different. But there are two basic ways of doing it. One, is with everybody in the same room and the other one is with the people in separate rooms. Now Stella and I practice primarily out of Polk county in Iowa, and in our judicial district we typically have people in separate rooms. And so that’s what is most common in our jurisdiction but that is not what is used everywhere and it is definitely not mandated. You can do it either way. And so the way it typically works for us is your mediator is going to be a completely neutral third party. Your mediator is not attached to either the petitioner or the respondent. Not attached to either party. No conflicts there. A lot of mediators are actually attorneys as well. A lot of them aren’t. So mediators can come from lots of different professional backgrounds. But the mediator’s job is to help facilitate conversation so that the parties can self-determine what their outcome should be. Based on those conversations about needing orange juice versus orange peels, right? And so in Polk county we generally have one party in one room and the to her party in the other room, and the mediator bounces between parties and kind of talks with them and asks questions and gathers information and helps them to move toward an agreement, helps them kind of negotiate that agreement. Now in other districts where everyone is in the same room, you will have both parties in the same room, sitting around a table, usually a circle. With the mediator also as a neutral third party. But the mediator under those circumstances will facilitate a conversation at the table between the parties. Sometimes just sitting back, and letting the parties talk and then asking the pointed questions that they might not be thinking about, sometimes just kind of helping to guide. Sometimes reframing. When sometimes, you know I do this a lot in my personal life, if I am upset, I will say something without choosing my words carefully…