There are more than one type of mediation. Every mediator has his own mediation style. In this episode, The Three Wisemen of Divorce discuss four different mediation styles: transformative, facilitative, informational and evaluative. Each mediation style has its own pros and cons and it is important to consider what style will work best for your divorce case.
The Three Wisemen of Divorce are divorce experts Mark C. Hill, CFP®, CDFA®, Financial Divorce Consultant; Peter Roussos, MA, MFT, CST, psychotherapist; and Shawn Weber, CLS-F*, Family Law Mediator and Divorce Attorney.
© 2024 Weber Dispute Resolution. All rights reserved.
There are more than one type of mediation. Every mediator has his own mediation style. In this episode, The Three Wisemen of Divorce discuss four different mediation styles: transformative, facilitative, informational and evaluative. Each mediation style has its own pros and cons and it is important to consider what style will work best for your divorce case.
The Three Wisemen of Divorce are divorce experts Mark C. Hill, CFP®, CDFA®, Financial Divorce Consultant; Peter Roussos, MA, MFT, CST, psychotherapist; and Shawn Weber, CLS-F*, Family Law Mediator and Divorce Attorney.
© 2024 Weber Dispute Resolution. All rights reserved.
Welcome to the three Wiseman of divorce money Psych and law podcast. Sit down with the California divorce experts financial divorce consultant Mark Hill, marriage and family therapist, Pete Russo's and attorney Shawn Weber. For a frank and casual conversation about divorce, separation, co parenting, and the difficult decisions, real people like you face during these tough times. We know that if you are looking at divorce or separation, it can be scary and overwhelming. With combined experience of over 60 years of divorce and conflict management, we are here for you and look forward to help by sharing our unique ideas, thoughts and perspectives on divorce, separation, and co parenting.
Peter Roussos:So, guys, I got an idea for a topic for today's discussion. And actually, Shawn, something that you emailed was was really, I thought really powerful and interesting. You sent last week, the piece about the different types of mediation. And I have never heard mediation broken down in that way. I thought it was really instructive. And so if you guys haven't talked about that yet, on this podcast, I think that could be a really wonderful, useful thing to cover today.
Shawn Weber:Well, we could do that we could talk about that. I mean, there are different styles of mediation. And I think that people out there that are listening to our podcasts, you know, they're mostly the people that are actually maybe going to go higher immediate it really important for them to kind of understand well, what's the mediation style of your mediator? Because not every mediator is created equal?
Peter Roussos:And I think that that I've always thought of that as as individual differences, if you will, in terms of the practitioner, as opposed to No, these are these are differences in models, if you will, or approaches under the mediation umbrella.
Shawn Weber:Yeah, and there's very little regulation about what mediation is supposed to be in California. Zero regulation. Yep. And so, yeah,
Mark Hill:I mean, anybody wants to be a mediator, just hang up a shingle, you're a mediator.
Peter Roussos:What about the thing that you both have talked about? Numerous times, you know, that it's a confidential process? What are there things that
Shawn Weber:there? Yeah, there are protections in the evidence code. In particular, section 1119. I think all the mediation Evidence Code Section started section 1115, as we in the biz, say, Evidence Code section 1115 at sec. And, but I 1119 encapsulates the confidentiality, for mediation. That is that anything that is said in the course of mediation, at least in the state of California is absolutely confidential. And it's one of the strongest confidentiality is in the entire evidence code. We mediators are very jealous about protecting our confidentiality, every time the legislature tries to do anything that might, you know, impinge upon, and we, we band together and fire off emails and letters to our Assemblyman, and state senators to our assembly persons, I should say, and state senators to demand that they not mess with our confidentiality, because we know that confidentiality is very useful and helping people feel safe. During their conversations, I don't have to worry if I'm a party, that something I say in a mediation is gonna be used against me later in a court of law. So you can be open and frank about what's really going down. And it's a wonderful way to encourage openness and communication during the mediation. But if people are afraid that they're going to lose that confidentiality, then what happens is people ham up and then kind of lawyer up, and they're worried that oh, I'm gonna be careful what I say, because it's gonna be used against me later in a proceeding, and people could then abuse the mediation and use it as a way to get information. Brad Adjey, you know, and so what? The confidentiality is really important. But But yeah, that's really the only regulation, you know, only rules regarding mediation and state of California. It hinges on what is confidential was not confidential. But as far as who gets to be a mediator and a Yahoo can go hang their shingle. And say, I'm a mediator. There's some states where there are rules about what you have to do to become a mediator. I'd say most, most of the time, if you're if you're going to hire a mediator, you may want to make sure they're trained. Minimum is a 40 hour mediation training or a 32 hour mediation train depending how good it is.
Mark Hill:And that's the requirement for collaborative. That is
Shawn Weber:the request for yeah How to be a collaborative practitioner. Most most groups are requiring a 32 hour course. In fact, I teach a 32 hour course specifically for that purpose. You know, but but there's also what we've learned is that there's different styles of mediators, and just how they approach what their voice will be in the mediation. And a lot of it, I think the paradigm really is, is it going to be a less intervention model, like less intervention on the part of the mediator, or more intervention on the part of the mediator? And
Peter Roussos:these are the four types that you identified in the piece that you sent out?
Shawn Weber:Yeah. And yeah, it's on my blog, if people are curious, you can go to Weber dispute resolution.com and read the blog. And it's the title of the post is the pros and cons of the different styles of mediation. I actually wrote this for professionals. But But I think it's a good thing for for consumers to read as well, because it kind of gives you an idea of what to expect, you know, but you know, to be really clear about what mediation is, you start off with mediation is just it's a form of conflict resolution that involves a third party neutral thing. And that third party neutral doesn't get to decide it's not like that third party neutral has a tie breaking vote,
Mark Hill:the difference between an arbitrator and mediator, which often
Shawn Weber:Yeah, a lot of times I'll hear people say, well, we want to hire you for arbitration. And so then I have to kind of ask a little bit, what do you mean by that? But so so arbitration is I get the tie breaking vote, if you can't decide that I decided for you mediation, I'm just a neutral, I'm just a third party negotiator. But I don't decide anything. You're in charge. And I say to my clients, a lot of times stay in charge. Because if you leave mediation and go to court, then a stranger in black robes will decide your life. You know, so stay in charge. But the four different types, I'll just kind of start where they are, you know, so we got we got a transformative, we have facilitative, informative and evaluative. And you might talk to 40 Different mediators that have even more different styles in between those, you know, but I feel like those are the four main ones.
Peter Roussos:So how do they break down?
Shawn Weber:So I mean, I'll start on the less intervention side. And the reason intervention is important key word is because an important ethical point for mediators, is this right to self determination that we want to afford the parties, okay, it is considered a golden rule of mediation and every ethical rules, set of ethical rules I've ever read on mediation, the right to self determination on the part of the parties is the principal point that they decide is not my case, it's your case. But, you know, to what extent can the mediator intervene, to make sure that there's a process where settlement is possible. And there's different schools of thought now, when mediation first started, you know, I think transformative mediation really got big, it was used by the US Postal Service mediation mediators, it was kind of in the early days, and it was completely non interventionist. All the mediator would do it just kind of sit there and and help the people talk. And there wasn't necessarily even a direction I kind of think of it is, what's that kind of jazz, where you don't even know what you're playing, you're just gonna start playing stuff, improvisations, improvisational jazz is kind of like that, you kind of sit there and you kind of let it flow or it flows. And what we're hoping is that we can get to a moment where there's a transformation of the relationship between the two parties, and then a settlement can occur. And this occurs because we facilitated, you know, I want to be careful about using the word facilitation, because there's a facilitative process, but we provided a forum where people can talk freely. But the mediator does very little to control the conversation does not set the agenda for the meetings does not provide any information doesn't provide legal information. And you know, oftentimes, you know, the will, you'll sit down with a transformational mediator, and they'll be like, Okay, well, what are we going to talk about today? And that was the primary form of mediation for a while until we got well into the 80s. And then what started to develop was a version of that called facilitative, mediation. And when you think of a facilitator, that's a person that's facilitating the conversation, right. And that person is more in charge of the process. I'm going to sit here and I'm going to control what the you know what the conversation is. I won't necessarily identify issues that's still up to the parties, but I'll facilitate the clients identifying the issues and so I have a little bit more involvement.
Peter Roussos:Is it is it accurate for me to think of this as being dynamic driven at the image of guardrails? You know, transformative mediation, there's a lot of room in the guardrails and and then if the dynamics between the parties are such that they need more structure, the ground the guardrails, if you will move in a little bit closer and that the mediators is
Mark Hill:manual. So it's really I think there's an additional thing, Peters, those guardrails continue to come in, which is the skills and the training of the mediator in a specific field. So when I'm doing mediation, my trainings in the financial area where they're seeking that information from me, and so my role is to kind of interrupt him if they don't understand something about the finances. Well,
Shawn Weber:that brings me to the next step in the paradigm and that is the informational mediator, or informative mediation as it's called. And I think that's you and I do a lot of that Mark. Yeah. And that is where we're, they come in, we're facilitating, but we're also we're taking a step further, we're providing information. I'm telling people what the law is, you're talking to them about financial principles. Now, you wouldn't do that necessarily, in a purely facilitated mediation, you certainly wouldn't do it in a transformative mediation. You know, and there's pros and cons to each model. Right. So, you know, going back to the transformative mediation, you know, the pros are the parties have all the power, that's kind of cool for parties, right to have control. They can experience personal growth. It's interesting when I teach this, you know, I teach mediation, it seems that the mental health professionals seem to be attracted to transformative, because growth component is there, you know, they learn to communicate more effectively.
Peter Roussos:It's interesting that I literally 30 seconds ago, was thinking about my involvement in collaborative cases. And my services are way less way less needed in a transformative process, when I'm thinking in terms of the dynamics between the parties where they're able to work collaboratively enough on their own, that maybe there's offline need for, you know, mental health services. But there's a process.
Shawn Weber:I think, collaborative practice, this offshoot of the ADR movement developed in the 80s, right with our friends do Webb, who's been on this podcast before, that you have this agreement that attorneys working together, and then a professional team working together to include mental health professionals and financial professionals, that they sign an agreement that says they will never go to court. But in essence, what they are is an informational mediation team. Yeah, yeah. You know, they're providing information, and they're actually very rigid, I find collaborative processes to be very rigid in terms of control of the process. More so than what I see in any other mediation model. I think that's just kind of a special way. I mean, it's a pro and a con, it's a pro, because the rigidity, you know, your your positive might be my negative the rigidity can be anything because it helps people stay on track, the negative to the rigidity is that, well, people aren't rigid, necessarily. And they sometimes don't react well to that kind of, you know, so. So it's interesting for me coming into collaborative having a mediation background, it was hard for me to kind of feel comfortable with a process with very strict protocols like what you have in a collaborative process. You know, but, you know, that's that kind of goes to my point is these mediators, when they're learning how to mediate one of the things we teach them that will find your voice, where do you feel comfortable? And maybe that's the type of mediator you will become. So you know, I mentioned the pros of transformative is that flexibility, right? Well, the con is the process can take a long time, because nobody's really in charge of what we're doing. Not even the mediator, and they may not resolve the specific disputes, it may just, you know, you can go down all kinds of rabbit holes. The other con is that it may not be very effective when you're talking about cases where you have power imbalances. If you have a situation where somebody is,
Mark Hill:and I would add that it's not just power, but it's knowledge, because knowledge is power. So a lot of the time someone will come in knowing everything about the children, what they do every day and the other spouse has not been involved and that really creates a power imbalance when it comes to talking about how your child sharing should occur. afterwards. Same thing with finance, it's obviously too
Shawn Weber:sure, you know, so then you move on to the facilitative. And one of the pros of the facilitated Well, the party still have a lot of control over the outcome. Right. But the focus is very much on interests and needs. You know, it becomes interest based negotiation. And I think that the most common model for mediators who start in the facilitative process is the Getting to Yes, hmm. Books, those are wonderful books. Oh, gosh, the authors are eluding me. Fisher and urate. Getting to Yes, if you ever want to read a really good book on how to negotiate from an interest base point of view, those are must read for any, any good negotiator and their light read. I mean, the books are pretty thin. But the seminal book on negotiation, I think, is getting to yes. And facilitated mediators tend to use that kind of thinking around focusing on interests, not necessarily this is what the law says, right? But on what is it that the parties need, or want. The negative is your The other thing is facilitated mediation is less expensive than a lot of the other models, because there's fewer resources brought to bear. You know, it's just one person talking in a group, you know, mediating, but the con is that it may not be effective for cases where you have the power situation, the power imbalance, although I would argue that a good facilitator knows how to balance the brim. You know, so part of that is if you've got somebody as a facilitative mediator, and you're worried about a power imbalance, ask them well, how good are you on high conflict cases? How good are you on balancing? People's, you know, participation. And then the other thing is, you know, in facilitative, mediation, you wouldn't give legal information or financial information. And so if you want a mediator that can provide that extra piece of information, then you might want to look to towards a more informative mediation than a facilitative mediation. You know, and then if we move on to the informative mediation, I think that's where Mark and I primarily live. You know, that's where the mediator can provide legal information about legal rights, and responsibilities. And that kind of helps the parties know what to know what their choices are, we kind of describe, here's the backdrop of the court. This is what you could expect from a court situation,
Peter Roussos:I imagined that I imagined that I'm curious if for the two of you, that seems like a more challenging dance, if you will, in terms of maintaining the neutrality.
Shawn Weber:Yes, yeah, I think that's true. I find myself sometimes having to make a judgment call. Do I want to, in my sharing what the law says on this particular issue, or what people's experiences are, too, I will share that like, hey, some people do this, and it doesn't work. So well. Yeah. That mean, putting my finger on the scale and then no longer being neutral? I mean, what's your experience mark with? Yeah, I
Mark Hill:mean, this happens, I mean, will I you doing a case, you're reaching an agreement, and then suddenly, I see, hmm, if they do that this has a financial consequence that we haven't discussed, I feel I have a fiduciary responsibility to bring that up. But then on the other hand, I don't want to blow it up. So we do make value judgments. If it's a rounding error financially, in the case, and it is something that has caused conflict in the past, or there has been a lot of conflict in the case, you make a value judgment, you know, it's not going to really change anybody's life. And, yes, you're playing God to some degree. But, again, our goal is to reach a settlement that is fair and informed. That's the way I think about it. And so the default is to share the information. But there are times when you do make a decision to perhaps hold back on it or even share it in a in a caucus situation rather than an A, and say, What do you think, you know, you're the one affected by this. I do want to bring it up. And
Shawn Weber:it's interesting when I first started my work as an attorney, I immediately was mediating fact, I was mediating before I passed the bar exam. I took some mediation courses in law school and my I worked for somebody that was good enough to let me do some mediations on some divorce cases, and I got some experience. And I was allowed to do that. Because in California, anybody can be a mediator, right? But I wasn't Much more transformative and facilitative. Back then, because I frankly didn't know the law very well. I was new. I was a baby attorney, as I've developed as a practitioner, and now I'm a 20 plus year veteran. I do know what happens in a courtroom, you know, and so I feel like when people are paying my rate, and you know, my rates commensurate with my experience, they want and expect me to be able to opine on this is what the law is, or this is the kind of thing that we're I had somebody asked me, well, we're thinking about nesting. What do you think of that? Nesting meaning the kids live in the house, and the parents are the ones that move back and forth, and just come do their parenting in the house while the well then the other parent goes to an apartment somewhere else, and then they switch off. And I had to say, you know, based on my experience, it can be challenging to manifest unless the parties are very high functioning. And the dynamic between the parties is very strong. Can you be a part of our partnership? Otherwise, I wouldn't try it. Well, that's some information almost pushing on putting a finger on the scale, right? In reality, I've only seen maybe in my career, one nesting arrangement that ever really worked. Mark, I'm sure you've come across plenty of situations where you had to help people figure out a unrealistic financial situation,
Mark Hill:spouse is determined to keep the house no matter what. And they've, and you know, nothing can dissuade them from the fact that they must have the house. Well, I can share information that show that five years down the road, when the kids go off to college and house, the one spouse is still remaining in it. There's no money, they don't have enough income to pay the mortgage. Do I share that? I think I have. I think I have a fiduciary responsibility to share that, frankly. Because, yes, we're trying to get to settlement. And we're trying to do it in a way that is equitable. However, things have consequences down the road, and I don't want to bump into that person in the grocery store five years down the road, and they tell me they're living on the street, or they had to go to an apartment in a bar neighborhood. You know, those are the kinds of things where, again, is it putting finger on the scale? Yes. But it's doing it in a way from I would say for the from the very best mo tips. Because if I don't share it, what is the consequence?
Shawn Weber:Well, I go ahead, Pete. Sorry.
Peter Roussos:No, I was just thinking that I think for for me in my work. And this includes the work that I do in support of mediation, one of I think one of the most important questions that I ask clients, and sometimes I asked it before their clients, I asked them when they're prospective clients. But certainly early early on in my process is I asked people directly, how honest Do you want me to be with you? And I think that the reality is that we are paid for our judgments we are, that's part of the expertise. That's part of the experience.
Mark Hill:Here, I really liked that question. Because you know, there was a time in every case where you have to be brutally honest about something, you know, or be it whether it's about making a decision around something or how you even how you approach something. I was working this morning on a on a proposal that one lawyer is working on one side for on short, and I impact neutrals in this case. And I spoke to the lawyer and suggested some just some, some change of wording here and there to make it land better on the other side, because I know how sensitive the other side is on some issues. Yeah, but again, we are we putting our finger on the scale, perhaps a little bit, but again, from the right motives.
Shawn Weber:And a lot of this has to do with the skill of the mediator, a well trained mediator will be a master of the reframe where they will take a problem and reframe it in a way that the other person can hear it from a neutral perspective. No. And sometimes that also involves reframing. Well, this is what would happen if he went in front of the court and saying that in a way that does not look like Well, yeah, I'm putting my finger on the scale, but I'm being very neutral here. And I'm just telling you, this is what the code says. And then being willing to say when it's ambiguous and we have those cases don't we were where people are like they want to cut and dry bright letter law you know, bright line rule on something and and that doesn't always happen in court. Yeah, it's a court of equity and marks always very happy to point out that provision in the in the spousal support revision and where, you know, it lists all these factors A through H and at the very end, they throw in anything that jumps. Thanks, man.
Mark Hill:I always tell people that because they just want to know the rules, just tell me the damn number I write the check I've had that said to be more than once. And I'm sorry, there is no number.
Shawn Weber:I tend to say, well, this is what the law says on this particular issue. Now, what do you want to do? You can do whatever you want. Because you know, the judges are thrilled if people figure out things on their own. And with only a few exceptions, the judge will let people do whatever they want. Yeah, and as long as they both agree, that's the key. And so I come back with as long as you both agree, you can do whatever you want. So you've heard now this is what Family Code Section blah, blah, blah, says, Now, what do you want to do? And always put it back on them.
Peter Roussos:You both you said a few minutes ago, Shawn, that what you and Mark do is really largely in this informational mediation model. What are the pros and cons from both of your perspectives?
Shawn Weber:Well, I mean, the Pro to information is that you can actually give people expert knowledge. So they can form decisions that at to informational. Legal complexities can be addressed without them having to go to a formal legal process, because they're hearing from somebody who's neutral who doesn't have a stake in the game, this is what would happen, or what they think might happen, or people Vegas odds. The negative is that people, if they hear something like this is what let me run the support calculation, I run the support calculation, and then people anchor on the support number that the software spits out. And that may not be the best number for their family.
Mark Hill:And the other challenge we've had, Shawn is when people go outside of the process, which is fine, you can get information outside and come back and say, Well, I spoke to a lawyer who said I would get a, b and c. And it's like, how this I mean, it's easy for me, because to some degree, I don't care if I offend a lawyer, but you're a part of the legal community here. And it's important for you to, you know, have some, shall we say, be a little cautious around how you talk about other lawyers opinions?
Shawn Weber:I have had, I've only thrown a few lawyers under the bus. In my career, there have been a couple where I've been like, no, that's nonsense. You know, that's happened. You might want to get a second opinion on that one. I've tried to be very neutral about it. You know, it's, I love it when the attorneys are there. And I'm concerned about, is this going the right direction? Because then I can question the attorney. Well, did you think about this? Did you think about that? Well, what about this case, you know, and make them force them to kind of defend themselves in front of their client. It's interesting, when you see an attorney, kind of stammer backtrack, when you ask them a question, I kind of do it like a judge would do in oral arguments. But what about this, you know, not because I want to make the attorney look bad, but because I want the attorney to be able to send what they're saying so that the client can hear that. And the other thing is, sometimes I will say to the client, okay, well, your attorney has made a very strong case, and is doing a good job and taking care of you and making sure that your interests are met. But what do you want to do? Now? Maybe you have a very strong case on this. But what's the benefit to you if you go ahead and agree to what this other person is asking for? What's the benefit to you to just getting an agreement today, as opposed to Yeah, your attorney could probably go to court and do a bang up job on this. You know, and I'll ask the attorney, well, how much is that going to cost for you to do that? They always underestimate it.
Mark Hill:The other thing is that I've done this with attorneys where I brought attorneys to the table, and I often will say to them, if you were on the other side, how would you argue this? And if you were on the other side, because I want the I want the the clients to understand the range of outcomes range of possibilities, as opposed to it's either a or it's B, you know, because you get a very slightly you get a slightly different take on it when you ask that question.
Shawn Weber:Yeah, and just kind of understanding that there's risk and this goes back to the principles of that book Getting to the guests I was telling you about what getting to yes is teaching negotiators to do is to be very conscious of what is your best alternative to negotiated agreement. And the short form of that is bought in a bat and a best alternatives negotiated green or what's your what's your worst alternative to a negotiated agreement. And oftentimes people get that wrong. Because they've been living with the case, and so they may have a rosier bottom and a rosier wad than they really ought to be having. And then when they actually hear what the other person's view of the case is, of what their button is, and wanton, bizarre, it starts to make people think, Oh, wait, I've been hearing from this attorney, that it's this but really, that this guy's went to law school, or this gal did. Why is that I got two smart attorneys here that are disagreeing.
Mark Hill:And that's powerful for the clients to see. Because it, it goes back to what Shawn was saying about wrist. You know, and and you literally do not know what a judge will do. You really don't know how
Peter Roussos:often do clients turn to you guys and say, Well, what would you do?
Shawn Weber:Like if I was, if I was them? What would I do? Yeah. They asked me that. And I try not to allow them to pull me there. Because, yeah, the way I differentiate legal advice from legal information is legal advices, that should piece which I do, or ought I do, whereas an Asian is? This is just what the law says? Or what financial principles are, this is one of them. That's right. Or this is from if you were doing it from a mental health standpoint, this is what the research says on parenting plans for a two year old. But when it gets to be like, what would I do? If I were them? I tend to be careful about that. Because I don't want that to then become an advice situation.
Peter Roussos:Well, imagine there, that you guys are often asked some form of the question that what would you do? Or what do you think I should do?
Shawn Weber:I usually turn it into a question for them. So if you agreed to this, and that were, let's say, you went to court, and you fought over this, and then you lost in the other side's position one, what would that mean for you? Oh, that'd be awful. I don't know what I would do. That'd be terrible. I'd be ruined, you know, or whatever it is. And let them think about that, and kind of masseur rate. And the possibility that they they may be looking at it the case, from a perspective, that was too much in their favor. And that's what happens. I mean, you get this this information bias when you get in your silo. See it an Adi, right. Fox News has one information bias, MSNBC has another one. You know, and if you don't listen to different perspectives, you're gonna get more and more in your corner. And it may or may not be something that leads to something that's actually useful for them. It's not good to to underestimate your risk, which I think people routinely do.
Mark Hill:Yes, I agree. And, and they, they also come into this with the sort of, remember the Al Pacino movie justice for all. It's like, if I could just tell my story, everything, I'll get everything, once I get in front of a judge or in front of a neutral, even if I just tell this person how awful my spouse was, I'm sure that they're going to see things my way and give me everything. I mean, I'm exaggerating, but there is that the people come into there with that concept that we're here to pass judgment as opposed to what Shawn's been talking about providing information so that clients can make decisions jointly. Now, the
Shawn Weber:fourth version of mediation that we didn't talk about yet, but it's nevertheless important is the evaluative mediation. And this is the one that I would say, is the most intervention on the part of the mediator. And this is the favorite for the judges, the private judges, the retired judges that go into mediation. And what you would do if you would hire a judge in this situation, what you're looking for is, what would you do if this case were in your courtroom? So they're evaluating your case, and so they will tell you this is what would happen if it was in front of me. And it tends to be really useful for really complex cases where there may be complex legal questions that require a lot of analysis. And it may result in faster resolutions compared to some other styles because you know, you got the expert that kind of opines the negative to it is that well, you're giving up some Your self determination by having a judge say, Well, this is what I would do. And so they tend to anchor on what the judge is thinking. Even though that judge, you know, we've said this before, you can show the same argument on spousal support, for example, and show it to five different judges, you know, video day but and show it to five different judges and get five different results.
Peter Roussos:Well, I think, Shawn, that there are those cases where they may move from informative to evaluative to try to settle it right.
Shawn Weber:And sometimes I've had to do that. And so there's there is a tool that mediators have called the mediators proposal. And this is when we've been working with a couple, or parties to parties in a case and they're just not able to reach a resolution, then what the mediator will do is it's kind of this is my take it or leave it mediator proposal. This is the last ditch effort. This is what I think you should do with your case. Here's my proposal. If this isn't good enough for you, then you're done. Go to attorneys and fight it out. Kind of a last ditch effort with with the value of mediation, you're kind of starting there. You know, and that has its its pros. I think it's really attorneys like that mode. Like whenever I'm doing a mandatory settlement conference at the courts. The attorneys want to know, what would I do? I'm looking at this from 40,000 feet. I haven't been living with this, like the attorneys have, and they actually call me a judge when I'm settlement conference. When I'm facilitating a settlement conference, I'm called IT Pro Tem judge. But what I'm doing is I am giving them a very strong evaluation. Now I I can't help myself, I still facilitate. There was another former judicial officer here in town. Who, who I really liked going to him because he would he would kind of hide the ball. He wouldn't opine yet. And then when we got to that point where we really it was really obvious that he needed his opinion. He'd say, Okay, do you want me to give my opinion now? Because once I give my opinion, it's out there. Do you want that? You really want it? Yes, we want it. Okay. Well, here's my opinion. And then I'm like, Oh, dang, that just ruined my case. Or, Hey, that's my that's why I wanted, you know, and then people tend to anchor it does take some self determination, self determination away, because people tend to anchor on the judges, evaluation. But it can be useful. I mean, we got this case Mark, where we're talking about a prenup. And we've been talking frequently about we're not sure how the prenup would be handled. And it's a key issue. And the thought was, well, what if we go to a private judge? To have that judge simply opine on the issue of the prenup? And give an opinion on what would happen with that prenuptial agreement. And then once they know, then we can come back to mediation and have them use their interests in light of how the prenup would be handled so that we can move forward, but they actually ended up figuring it out. But not doing that.
Peter Roussos:Shawn, would you would you you clarify something for me, please about confidentiality? And this is the question that I have. My understanding is that if a case falls out of mediation, and and people leave it to go into litigation, they own their case file, is that correct? And what does that mean in the context of mediation or confidentiality.
Shawn Weber:So mediation, it's a little bit different. So in a legal situation, they own their case file. They're entitled to everything in your file. And when the case is over, it's actually their property. And if they request their file, you have to give it back to them. And most of us jump through the go through these backflips. Because Does that mean I'm going to have to store things ad infinitum? In the end of time? Yeah. And so most of us have like a time limit? Well, I'll hold your stuff for five years. And then after five years, read your file, if we haven't heard from you. Otherwise, I have to affirmatively ask permission to destroy a file. Oh, interesting. Okay. And if they request the file, we have to give it to them that comes up sometimes in collaborative cases, because you have this attorney and they've agreed to this confidentiality within the collaborative process. Yeah. And then the case goes to court and new attorney that's gonna litigate this case. They're like, Okay, give me the file. I want the file. And then the collaborative attorneys like, well, I don't want to give you all the file because we agreed that some of that would be confidential. And I haven't ever seen it tested, but I think if it were tested, the attorney would have to give it to the attorney. I think it would have to be turned over.
Peter Roussos:So what does that mean in terms of confidentiality? Well, it
Shawn Weber:doesn't mean that it then gets put into evidence at court. Okay. What it means is the attorneys entitled to the information. But then anything that is considered confidential can't be brought up. And we're careful in collaborative cases to sign a stipulation that says that we're using Levin 19 of the evidence code, which is the confidentiality section for mediation, minded to our collaborative. And we're saying you can't use anything we said during our conversations and discussions in court. But there's still work product that the client is entitled to. You know, and I think that may be true in mediation as well. Except I don't turn my notes over, I have it in my agreement that I don't turn my notes over. My notes are mine. They're there. They're kept confidential. And what is something that survives the process, and this is according to case law is their financial disclosures that they prepare, that are required by the courts, the California there's an income and expense declaration as scheduled assets and debts, and then the backup information, the evidence to support what's in those declarations, those survived the process and can be used by the new attorney, but everything else is strictly confidential. Okay.
Mark Hill:And my rules, I think, is slightly different. I mean, I say very clearly in my retainer agreement that if the case falls out, all my work product is confidential. They can agree to use it, but one side can't use it. So if they've sent me anything, I that is shared. So any information that the client send me around the finances that shared, any work product that I've produced, though, is not cost sharing, and less they both choose to do it. So sometimes, in a case, we'll get deep into it. And we've agreed some things and we've got some work product that we provided to them, there's part of that agreement, but now they're going on, they're stuck on other things. They could choose to do that. But if one size has either side has a veto, they can say no, that cannot be used, because I don't agree to it being used.
Shawn Weber:Well, in an interesting way that 1119 of the evidence code is used is that not all you nothing that is discussed in mediation can ever be used in court, unless everybody agrees to it, all parties, and the courts are interpreting all parties to mean and that means the mediator to. And so you know, I've been I've had people like I want you to testify in court about what happened in this mediation session. I'm like, lb, Sam, and then they're like, Well, we're going to send you a subpoena. No, I'm not going to do it. Well, we both sides agree that they want you to come into court and testify about what happened here. I'm not doing it. And so then, you know, they tried to push it and I can show them the case law on that. No, look, I am a person that counts. I don't approve of this being disclosed in court, because I really want to protect what was discussed. And so it's a very strong confidentiality, like even if both parties agree that the information can be used in court, the mediator can object.
Peter Roussos:And just to reiterate, Shawn, that's how it is in California, it may be different in other states,
Shawn Weber:it may be different other states, but what I'm, most states have a very similar approach. I'd say the majority of the jurisdictions will will do that. But you know, check your local jurisdiction if you're not in the state of California and make sure on that. Yeah, well, it just
Peter Roussos:to the audience. I really want to if this has been interesting, I want to encourage you to go to Shawn's website and look up the article, I found it very helpful and fascinating.
Shawn Weber:Well, I'm glad that somebody's reading my stuff and finds it worthwhile.
Peter Roussos:Yeah, as I say, I have never heard it. And it made so much sense to me. I've never heard mediation broken down in that way. So well done. Really well done.
Shawn Weber:Well, good. Well, we've been talking a long time. Yeah. I think maybe we can stop now. Yeah.
Mark Hill:I think our audience might might appreciate that.
Shawn Weber:So So Pete, if if people wanted to talk to you about mediation or about services you provide what what should they do?
Peter Roussos:Best way to reach me is my website, which is Peter Russo's dot com. That's P E T E R R O U. S. S. O s.com. And you can contact me through the contact me page.
Shawn Weber:And Mark, what would they do if they needed to talk to you about some financial stuff,
Mark Hill:same approach go to my The company website which is PAC divorce.com PAC di vo rce.com. There's a contact page there and there's also our phone numbers.
Shawn Weber:And if people want to get a hold of me to find out how to resolve their dispute, we will match them with a mediator to resolve their dispute. It's Weber dispute resolution.com That's a Weber with one B dispute like we had a fight and resolution like we solved it.com And you can go there and find all kinds of things, including, according to Pete, very good and interesting blog posts. And this podcast is on there as well. So look forward to people checking it out. Thanks for listening to another episode of the three Wiseman of divorce, money, Psych, and law. If you liked what you heard, be sure to subscribe, leave us a review and share with others who may be in a similar place. Until next time, stay safe, healthy and focused on a positive bright future. This podcast is for informational purposes only. Every family law case is unique. So no legal, financial or mental health advice is intended during this podcast. If you need help with your specific situation, feel free to schedule a time to speak with one of us for a personal consultation. Thanks for listening to another episode of the three Wiseman of divorce, money, Psych and law. If you liked what you heard, be sure to subscribe. Leave us a review and share with others who may be in a similar place. Until next time, stay safe, healthy and focused on a positive bright future. This podcast is for informational purposes only. Every family law case is unique. So no legal, financial or mental health advice is intended during this podcast. If you need help with your specific situation, feel free to schedule a time to speak with one of us for a personal consultation.