Family Matters with REESELAW Podcast

Episode 3: Comparing Collaborative and Mediation Processes in Family Law

Episode 3: Comparing Collaborative and Mediation Processes in Family Law

In this episode, we discuss comparing collaborative and mediation processes in family law.

 

Transcript:

Catherine Reese: Welcome to Family Matters with ReeseLaw. We are a family law firm based in Fairfax and serve the Northern Virginia and Montgomery county Maryland areas. In our podcast we are going to discuss current topics for families in transition from premarital agreements to divorce, custody and visitation. I'm your host, Kate Reese, and joining me today is one of our associates Christine Hissong. We are both collaboratively trained attorneys and certified mediators practicing law for more than 20 years. In Episode Three, we are comparing collaborative and mediation processes in family law. As a disclaimer, please note 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 advice. Thank you.

Christine Hissong: Kate and I have spoken with you a couple times now regarding the collaborative process and mediation. Today, we want to do a bit of a comparison to help you choose which process would be best for you. Whenever you're talking to an attorney about your family law dispute, that attorney should be telling you about all of the different processes that you can use to resolve that dispute. And there are several ways of resolving your family law dispute without ever having to set foot in a courtroom. And inevitably, when Kate and I speak to our clients about the different processes, they'll ask us what we think they should do? What’s the best process for them? What we recommend? And it's a really personal choice. And so the best that we can do is really talk through it with the clients. And we want to do that today with you focusing on the documents that the party sign when they enter each process.

When a party engages in mediation, they sign an agreement to mediate. When they engage in the collaborative process, they sign a Collaborative Participation Agreement. So we want to talk through some things to think about in relation to those two documents, the agreement to mediate and the Collaborative Participation Agreement. One thing to think about is whether or not there are any urgent issues, particularly pertaining to children or to finances. Another thing to think about is whether or not either of the parties suffers from mental health issues, or mental health challenges. Are there differences in the level of knowledge that each party has regarding the family's finances, debts and assets? And has there been any abuse in the relationship? That could be physical abuse, emotional abuse, or even financial abuse? And finally, is there a significant lack of trust between the parties?

Now, of course, typically, there's a bit of a lack of trust and every conflict, and that's no different in a family conflict. But we're talking about a significant lack of trust that you would not feel comfortable speaking with or negotiating with the other party. So let's talk first about urgent issues, again, pertaining to particularly children or financial matters. So when parties engaged in the collaborative process, and they sign the Collaborative Participation Agreement, that agreement addresses urgent issues. If we're talking about children, the agreement dictates that neither party will deny access to the children to the other party. It also sets out that neither party will remove the children from the home or from the area and without agreement between the parties. And so quite often we see in family law cases, that there are urgent issues surrounding the children. Someone is threatening to take the children out of the home, or someone has moved out of the home with the children, and the other party has no idea when they're going to have access to the children.

The collaborative Participation Agreement tackles that issue right off the bat. No one's going to be denied access, and no one's going to remove the children without agreement by the other party. Now that the collaborative Participation Agreement also addresses urgent issues regarding the finances, it states that there's going to be status quo, so no one is going to deplete the assets or close all the bank accounts or remove all the money from the bank accounts. No one's going to run out and incur more debt that the other party might be jointly responsible for.

[00:05:07]

No one's going to cancel insurance policies. And these are things that people are very fearful about right off the bat when Family Law dispute arises. And so this sort of calms those fears and addresses those urgent issues, sort of puts a hold on everything. And the parties maintain status quo while they're going through the collaborative process. In mediation, urgent issues can be handled a different way, or addressed a different way. Kate's going to explain about mediation and those urgent issues being handled in that process.

Catherine Reese: Certainly. Mediation is where you have a neutral assisting the parties with or without counsel in reaching an agreement. It is process that is often employed at the beginning of a dispute, but also after the parties have begun working or resolving their issues and have reached an impasse. And that impasse may certainly be something having to do with the custodial schedule or support. The agreement to mediate calls for disclosure relevant and material information, and the process supports documenting points of agreement along the way. The parties and their families can have a sense of security while in the process. This is typically called a Memorandum of Understanding and is executed by the parties. And it can be done at any time. It can be a single issue Memorandum of Understanding regarding something such as the code custodial schedule or can be much more broad, people in mediation can have multiple Memorandums of Understanding in the course of their mediation.

Christine Hissong: Kate, I have a question about your Memorandum of Understanding in mediation. Is that memorandum enforceable, or how is that presented to the court, if at all?

Catherine Reese: Mediation with that process is established, a judge can be told that the parties did mediate, or that they did not mediate, because the court can propose the people go to mediation. But if the parties do not reach an agreement, what happens in the mediation process cannot be shared. Unless a few specific exceptions are met, such as somebody is planning to commit a crime, what happens in the mediation process stays in that process and is not shared.

Christine Hissong: In the collaborative process, we have what's called agreements to be relied upon. And so if the parties as they go through the process, if they come across an issue that they want to enter into an agreement and a binding agreement, right at that time, even though the entire case is not resolved yet, we can do that. And again, those are called agreements to be relied upon. So for example, if it would be helpful for the parties say, to take a loan out, well, they are trying to resolve their marital dispute, and they're heading towards separation or divorce and they decide, “Yes, it would be helpful to take a loan out to perhaps pay some debts or fix up the house for sale or something of that nature.” And they want to reach an agreement about how that loan is going to be paid, they can do that.

We can have just that single issue agreement called an agreement to be relied upon, the parties would sign it, and then that agreement is enforceable. Even if the parties eventually decide that they do not want to complete the collaborative process, that agreement to be relied upon, is still a contract and still enforceable. That’s a bit of a difference about how we sort of memorialize individual agreements in the two processes. So another of our thinking points was whether or not either of the parties had mental health challenges. And it could be something that has been a long time problem or it could be that the whole process of separating and going through this divorce has really caused some issues for one or both of the parties. In the collaborative process, the Collaborative Participation Agreement provides for mental health professionals to be part of the collaborative team. So these are experienced and knowledgeable and licensed mental health professionals, and they're not on the team for the purpose of treatment or diagnosis.

[00:10:00]

What they are on the team for is really to help the parties through the process. They help them deal with fear, with anxiety, with stress, and they help them get beyond those feelings so that they can actually be productive and make decisions. And so what happens is that moving along, helping the parties move along through the process and get past their emotional state really helps them to ultimately save money. Because we're moving through the process, it's more streamlined, they really have an outlet for anything that might get in the way of their decision making. And so we can deal with those mental health challenges or issues in the collaborative process.

Catherine Reese: In mediation, the involvement of other professionals or others, such as supportive family members must be agreed to by the parties. And in collaborative, when you introduce the concept of a financial neutral or a parenting specialist, they have to be agreed to as well. But in collaborative, they're more of a staple to the process, whereas they are seen as somewhat of an uninvited guest in the mediation setting. Both councils have to agree, the parties have to agree. Sometimes what the agreement is, would fall along the lines of your mother can be here in the hall, but cannot be in the session, your pastor or your therapist can be in the hall, but not in the session. Parties may have to agree to a financial expert or a mental health professional if they wish to have them assist in the mediation, often seen with the child's therapist. That would be one of the times when it would make sense to hear from a third party. But again, there's the possibility that one parent won't like what that person has to say, and the other person does. And so they would be relegated to being outside of the system rather than a part of the team that is working on resolving the problem. So that's where we stand in mediation, it's simply a much more closed process than collaborative is.

Christine Hissong: In collaborative when we have a mental health professional, whether it's a divorce coach, child specialist, a parenting coordinator, when we have someone like that participating in the case, that person we know has a collaborative frame of mind. They have actually gone through the collaborative training, and the mediation training that the attorneys have had to go through. In mediation, if the parties say, “Yeah, let's go ahead and let's engage a mental health professional to join us in this mediation.” Is there any guarantee or reliability that that mental health professional really is mediation minded or really in favor of resolving disputes outside of court?

Catherine Reese: Well, certainly all the questions can be asked, but the therapist or mental health professional would really have to be interviewed to determine if there were any leanings that they had in either direction, because when collaborative team gets set up, the mental health professionals on the collaborative team are brought in new to the team and meet the attorneys at the same time and meet the parties at the same time. And there's some initial cohesiveness that happens. So that wouldn't necessarily be the case with a mental health professional going into the mediation realm. So they may have their own opinions as to how family structures should work. And they have no knowledge at that initial point in time as to the parents, as to the children and how families work together. So without the support of the collaborative team, the mental health professional in the mediation setting, they are more left to their own devices and what they might glean through the process rather than the help have the collaborative team, which there is a whole unit.

Christine Hissong: Right, so the other point that we wanted to think about was, each party's knowledge of the family's finances, the assets and the debts and in how sort of the inner workings of the family goes about is quite common that in sort of divvying up the duties that spouses have, or families have that perhaps one spouse is more in charge of finances, the other spouse might be more in charge of children, and everyone sort of has their job to do.

[00:15:14]

And what that results in quite often is that there's one of the parties who feels that they don't know quite enough about the finances, how they work? They haven't opened the bills on a daily basis or paid them. They don't really access the bank accounts perhaps or maybe they're not the ones who have been accumulating that retirement working and building a retirement account. And so they come now separated and divorcing, and one party feels very sort of behind about what they know. And of course, that makes them fearful about making decisions. And so that is something important to think about. What is the difference and knowledge about the finances between the parties?

And in the collaborative process, just like we can add a mental health professional to the collaborative team, we can add the financial neutral to the collaborative team. And again, the Collaborative Participation Agreement provides for that. The collaborative neutral would sign that Participation Agreement, just as the attorneys do, just as the clients do and just as the mental health professionals do. And this is a neutral person. And this neutral person works with the parties to gather all of the data about their finances, summarizes that, puts together the family's financial picture, in order to present that to the attorneys, and even to the client.

Sometimes that's the first time that the clients are really seeing laid out in front of them, what their marital state looks like. They help the financial neutral helps the parties do budgets. And, as we get into the process then, when we get into the task of option generating and option evaluation, those financial neutrals can help the parties generate options, they can help them resolve those issues, they can share resources with them, or dealing with the finances far into the future. And they can talk to them about the consequences of the different decisions, or the different options that the parties are generated, how those options would actually work in real life. And they can help educate that person and sort of bring up to speed that person who feels like they're a bit behind with regard to the assets and the debts and the finances. And in mediation, the parties can also come into mediation, not having all of the knowledge or having a different level of knowledge. And Kate, how does the agreement to mediate in the mediation process help that party who's not quite as knowledgeable?

Catherine Reese: Well, in mediation, each party is required by the contract to disclose all relevant and material information to the other party. That doesn't necessarily mean they have to explain it, they have to provide it. Any non disclosed assets or debts create exposure for future litigation and potentially overturning the agreement, which is one of the ways that you can help parties understand how important it is to disclose all information. But the parties may choose to involve financial experts by joint agreement, it could be the same expert, it could be the long standing financial advisor for the family, or they can each consult with their own and then there can be what's often called the Battle of the Experts if the two experts do not agree. But in a collaborative process, there's a true understanding that to get to a successful agreement, both parties need to understand the finances. And so that's a goal of the process.

Mediation does not hold that particular goal, although it would be equally important in that process as well. Because how does one sign off on a deal if they're not sure what it is that they are getting? How did they turn to their counsel and say, “Is this a good deal when there's significant information missing?” More work can have to be done on the front end of a mediation to make sure all the information is gathered, before mediation even begins. Whereas in collaborative, the whole team starts the process with the information gathering and having the financial neutral involved as soon as the time is right for that to happen.

[00:20:00]

And again, in mediation, the mediator is neutral and in collaborative, the financial person is neutral. But in mediation, the financial people will possibly be individual to the party. And that may cause additional attorneys fees simply because you now have two attorneys debate or two experts debating something, rather than having one clear agreement.

Christine Hissong: You’ll have sort of a battle of the experts then.

Catherine Reese: Battle of the experts is what we call it.

Christine Hissong: Okay. Well, that leads into our next thinking point, what if one or both parties feel like there's been abuse in the relationship? Again, financial, emotional, physical abuse, and the fact that abuse existed during the relationship doesn't necessarily mean that you can't resolve your dispute outside of court. But it really makes it a bit more challenging. And what we have to do, as attorneys, what mediator has to do, everyone involved in whichever process that you're using, whether it's collaborative or mediation, is really to make sure that there's not an imbalance of power. And an imbalance of power happens, usually, when there's some sort of an abuse involved. And so we have to make sure that the parties are making decisions from a place of knowledge, from a place of confidence, not from fear, and not from threats or intimidation.

And in the collaborative process of the party, each party has an attorney with them, we have these other professionals on the collaborative team if we choose to have them on the team, and the Collaborative Participation Agreement really dictates how each of the professionals will help to ensure that there's not an imbalance of power. So in signing the Participation Agreement, via the attorneys, the mental health professionals, financial neutrals, the clients are committing to resolve the case outside of litigation. We’re going to put all our best efforts into staying out of court. And it even goes so far as to say that there won't even be a threat of litigation. We’re really not even allowed to say, “Hey listen, I gave you my options. If you don't like them, then I think we should go to court or I'll just go to court.” We do not talk like that in the collaborative process, because that feels threatening, that feels intimidating, that disrupts the balance of power.

And so we commit to resolving outside of litigation with no threats of litigation. We commit to participating with integrity. We commit to not taking advantage of the other party's mistakes, or the other party's lack of knowledge. These are things that help to keep that balance of power level, and to ensure that each party is really feeling like they can trust the process. Additionally, what our Participation Agreement says is that the parties are only going to discuss the issues in the meeting with the attorneys present and whichever other professionals are going to be in that particular meeting. And what that does is I think it really makes people feel safe that they're not going to get cornered outside of the meeting in their home or during their day, by the other party wanting to discuss the issues and sort of feeling like they're forced into that discussion, that that could be threatening to them. So Kate, can you mediate when there's been abuse in the relationship?

Catherine Reese: You can. And both Christine and I take two different roles. One, we are attorneys and advocates for our clients. And two, we are Supreme Court Certified Mediators. Now, we obviously cannot wear both hats that have a neutral and that have an advocate in the same case, but there's two lenses. So if we are in this situation of being the mediator, and have the opportunity to watch body language and hear how people speak to each other, including not just the words but the tone, and how the other person's responding, that helps to give us an idea of how the relationship is working.

[00:25:00]

Sometimes the person who is in the less powerful position is quick to forego things that they should not forego that have significance to them in the future, such as their retirement. And we are, again, neutral in that particular position. But we can say, “To get this agreement done per your contract, there needs to be full and complete disclosure, and you've agreed to negotiate fairly and honestly.” And so as the neutral, I need to see those bank statements, I need to see those investment account statements. And then of course, they're shared with the other party, everything is shared between the two parties in mediation, as it is in collaborative. When we are the advocate, then we have probably done some legwork first, and we have a good understanding of the relationship dynamics. We have certainly had clients who wanted to go to mediation, the other side was insisting that it be without attorneys, which is one signal to us. And we've ended up mediating with those two parties.

And it was very clear that one of them was financially disadvantaged, did not understand. And the other was hoping to make the deal based on what information he chose to give out, which was well short of a number of bank accounts, for example. So it depends on which position we're in. But in both, we don't tolerate bullying or abusive behaviors. We don't tolerate yelling, screaming, carrying on threatening, any of that. Mediation is supposed to be a peaceful process to resolve your issues. But we have to know what they are. And therefore we need to know what all the assets and all the debts are, and what the needs might be for spousal support. Along those lines, and of course, any child needs that would fall into the child support category daycare things along those lines. So we emphasize yet again, that absent full disclosure, the agreement could be overturned as a way to encourage people to be upfront and honest in mediation, so that we can get them a good agreement that will hold up.

Christine Hissong: Yeah, I think that collaborative and mediation, they have similar strengths in that regard with regard to sort of protecting the parties, and making sure that they feel heard and supported. So the issue of trust, Kate and I have both when we've been talking about mediation and collaborative in the past, we've both said that the collaborative process and even mediation, they're not just reserved for people who are getting along wonderfully and trust each other, and who already agree on everything anyway. These are processes that are used by people who are really in conflict, who don't trust each other, and who have had some very terrible experiences, who have very complicated and even hostile cases.

And so when we talk about the lack of trust, I think when we're deciding which process to use, think about the trust issue. Is there significant lack of trust, we're talking about being able to feel that whichever process you use, you'll feel comfortable knowing that you can rely on what's happening. So in the collaborative process, the attorneys give legal advice to both parties at the same time in the same room. This is important because in other processes outside of mediation, outside of collaborative just in typical negotiations, or even in litigation, a lot of times, one party will speak with his or her attorney and the other party speaks with his or her attorney. And then when the parties talk together, they say, “Well, my attorney said this, or my attorney said that the law says this, or this is what's going to happen.” And it's two completely opposite pieces of information.

And so again, you have to wonder, did the parties interpret that advice the wrong way, or they purposely miss-characterizing what their attorney said, and this leads to just more and more and more distrust. And so it's really an important feature of the collaborative process of the attorneys give the advice in the room so that both people are hearing the same thing. If there is any disparity or any discrepancy in what the attorneys are thinking as far as what the law is or how the law would be applied.

[00:30:00]

Then the parties are both hearing that at the same time. So they don't have to rely on each other's interpretation. The other important feature of collaborative is much the same as Kate was describing in mediation, full disclosure of all relevant, important information. So the parties don't have to be afraid that there's something out there that they're not aware of. And because the attorney sign the collaborative Participation Agreement, those attorneys are upholding the process, they are committing to not only following all of the protocols and all of the rules of the collaborative process, but they’re committing to make sure that their client follows them as well. So for example, if I had a client who refused to give some information, the other party really needs to see the bank account statements, and in order to make decisions, and my client is saying, “No, I'm just not going to give them.” I as that resisting party's attorney would have to speak with my client, and would have to really enforce the collaborative Participation Agreement and make sure that my client gives the documents.

And so even though I'm representing only the interests of my client, and the other attorney is representing only the interests of her client, we are both as attorneys protecting and upholding the collaborative process, the principles of the collaborative process. And so this tends to help people relax a bit and trust a bit more, even if you have doubts about your spouse, or the opposing party, you can actually have trust in the process. And so I think that that is where the collaborative process really helps, and is really useful when there is a significant lack of trust between the parties.

Catherine Reese: I agree with Chris on that, because even though both of these processes are built around self determination that the clients will make the decisions and that we will help them, it does not include the safeguards. So a mediation can often be put on hold while information is gathered or verified. And sometimes people don't come back. And we hear later about litigations. And the person who's hiding the documents usually doesn't benefit from having done so in the process. But certainly in mediation, if we're mediating with just the parties and we're hearing differences on the law, the law gives me the right to stay in the house for six years, the law gives me the right to stay in the house for two years.

There is no law that says you get to stay in the house for six years, but that's the time when the mediation, the mediator will actually let the clients know that they'd like to have the attorneys present at the next meeting. And every time I've had the attorneys come in to the next meeting to get the law straight and everything we've been just almost done, and then we're able to resolve it. Whether it's the need to protect the documents, whatever the case may be, we just bring everybody together and say, “This is what we're missing. This is what we need to get this done.” And just get it resolved in that way. With collaborative, you have the contract that says you're in it to get it resolved. The mediation contract is not that strong. Sometimes whenever somebody hears something they don't like in mediation, like you need to hand over bank statements, that's the end of the mediation process. So the collaborative process has, I think, a stronger lifeline to it, than mediation does. But it depends on the issues because mediation works very well for many people. And it can be quick, it can be single issue, just as collaborative. I think the biggest issue with the mediation versus collaborative is that people aren't yet as used to hearing about collaborative as they are about mediation, which is one of the reasons why you're hearing from us.

Christine Hissong: Now, Kate, as mediators, when we are not serving as the mediator, and we are representing our clients who are going through mediation, we’re very supportive. We believe in that process. We believe that it's a great benefit for our clients to be able to resolve conflict outside of litigation, and we’re very supportive of that.

[00:35:00]

And I talked a bit about how in the collaborative process, the attorneys commit to the process, they're protectors of the process, they're collaboratively trained, of course. What kind of guarantees, if any, do clients have that their attorneys really believe in mediation or that are really going to be supportive in mediation or not disrupt that process.

Catherine Reese: The client needs to be listening, because there are many attorneys that are more comfortable in the courtroom than anywhere else. So if your attorney’s leaning towards litigation and talking about filing pleadings, and you're wanting a more peaceful resolution, you may need to look at other counsel, because some people will do mediation, especially if it's been requested by a court just to check the box. But you've spent time and money on that process, and the other person didn't really intend to participate fully. So those are some of the difficulties that we come across in that regard.

Christine Hissong: So I would say that it's really about asking the questions to your potential counsel, if you're a person who really wants to resolve outside of court and wants to mediate, the parties, the client should really be asking those potential attorney or counsel really the right questions about whether they're going to support them in mediation?

Catherine Reese: Exactly. And including, how many mediations have you done this year? Or how many mediations have you done to a successful conclusion? That's not an offensive question. That's a completely fair question. You're looking at paying this person money to help you resolve a dispute, and you have an idea of how you'd like to do it. So to really make sure they're on board, that would be what you're looking for. You’d also consider listening to what you might hear about somebody calendar, “Oh, I can’t meet with you for two weeks, I've got a trial. I've got a hearing that day, and I've got another hearing on that day.” Anybody who's calendar is filled with trials and hearings is probably not using the mediation process very much. We settle a lot of cases using mediation and collaborative and find that the clients really benefit from that. So they really are prized and preferred if it works for the couple that we're working with, or the family I should say. Sometimes we're dealing with grandparents as well as parents and children, etcetera.

Christine Hissong: Okay, so these are some of the things to think about to help you decide whether or not mediation or the clever process is best for you. There are other things to think about as well. But, of course, sitting down and talking with your attorney, Kate and I always sit down with a client and sort of think through these things and help them decide, but really only the client can decide what the right process is for him or for her.

Catherine Reese: And it is true that sometimes the right process for reasons that would be specific to a case would be to go into court. However, that shouldn't be the first thought.

Thank you for joining us today on Family Matters with ReeseLaw. Please subscribe to our show so you never miss an episode. You can also visit our website at www.ReeseLawOffice.com for more information. We hope you tune in next time when we talk about getting to know ReeseLaw in Episode Four.


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