The Akiona Law Podcast: Featuring Elisa Kisselburg

In this episode of the Akiona Law podcast, Lani speaks with family mediator, co-parenting specialist and Certified Legal Specialist in Family Law, attorney Elisa Kisselburg. We delve into the world of conflict resolution in family law matters such as divorce, separation and unmarried parents(aka paternity matters), exploring the two main pathways: litigation and mediation. What are the key difference between these approaches? When is one preferable to the other? And how can you determine which path is right for your needs and the needs of you and and/or your family? 

Transcript

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Lani. Okay, alright, so do countdown 5, 4, 3. 2 one welcome to another episode of the Akiona Law Family Law Podcast we're in we discuss everything that intersects in the areas of family law and divorce.

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I am Ululani, Lani Akiona, today I have with me. San Diego attorney.

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Elisa Kiselberg. Welcome, Elisa.

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Hello, good morning. Thank you. So much, Lani. It's great to be with you.

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Thank you everybody for listening in.

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And I cut that introduction off a little bit short. So of Lisa is certified by the state bar of California as a specialist in family law.

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Now, Elisa has been practicing for 20 years. And she's retired, she retard from litigation about 3 or 4 years ago to focus exclusively on her work as being a mediator.

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A work as a mediator in family lawn divorce cases. She actually graduated from Creighton Law School with a certificate of dispute resolution.

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And she trains other mediators. She was on, I think you said it was a panel of the national conflict resolution center in San Diego.

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Yes, that's correct.

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So she's got tons of experience here with mediation and I'm so glad that she's able to join us today to talk about why is mediation a good alternative to litigation.

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Why is that a Lisa?

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Yes. Well, first off, I just want to say thank you, Annie, for hosting this podcast.

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It's a wonderful offer to be able to have information for people who just want to drop in and check in and kind of touch in on all of the little touch points that affect people when their families restructuring in a divorce or separation.

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So I just have to say thank you. I'm a big fan and I'm grateful and honored to be on the podcast today.

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Thank you.

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Right.

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So. So this question of like, so what is the difference between mediation and litigation? And a lot of times people, you know, we see a lot of stuff on TV and, you know, it's this, you know, War of the Roses, which was a long time ago, but you know, there's all kinds of stories about, you know, in the media and stars who are divorcing and

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uncoupling and how it's a hot mess and how it's this and how it's that.

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Bye.

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But people don't realize that there actually is another way, then this formal place of filing court documents.

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And this doesn't matter what jurisdiction you're in this formal place of filing court documents. And this doesn't matter what jurisdiction you're in.

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I happen to be in California, but it doesn't matter what state you're in. And this doesn't matter what jurisdiction you're in.

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I happen to be in California, but it doesn Court document that's filed, a case is open, you're assigned a judge, you're assigned a courtroom, you're given a case number.

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And in essence, that's a thing that gives you as this couple a place to go knock on the door and ask for assistance from the court.

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And that could look like co-parenting or custody. I don't like to use those words.

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But that sounds like being arrested, but those are the legal terms. But custody, your parenting plan, child support, spousal support or alimony is called in some states.

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Yeah.

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Your property division, your debt division, but in a real formal litigation process, there's this, there's this, there's this, there's this, there's this.

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And if you don't know what you're doing. You could just get spiraled into a big hot.

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Excellent, too expensive hot mess. Okay.

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Mess. And so an expensive hot nest and first off I do just have to say I have so much respect.

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For our legal profession. There are definitely people who are dysregulated and maybe make bad choices and that you hear all of these, you know, you know, lawyer jokes.

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You know, the snake in the road and the lawyer in the road, there's skid marks in front of the snake.

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Oh, jeez.

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You know, I mean it's like there's all of that thing but in the essence of it.

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You know, the system, the legal system itself is broken. So as a attorneys, we're sort of strapped in terms of what we can do.

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Yeah, sure.

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So if you take a case and you are, you have a job to do and you're committing malpractice if once you open that case file all the way through if you don't do all of the things.

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Right? And so it's important for people to know that a lot of times the things that must be done are part of the system.

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And it's not necessarily something that you can have as much control over. And so attorneys, you know, they have to do what they have to do.

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And a lot of times self represented, against or even just the average person doesn't even know like what the heck is happening.

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What is this notice of hearing? Well, it might just be a procedural thing to make sure that your paperwork is moving along.

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Not gonna be any court orders around anything substantive. It's just, are you doing your financial disclosures that you need to do to get your divorce finalized.

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So people don't know that there's these steps along the way. And what that lack of knowledge does is it can create a lot of trouble.

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Yeah.

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In that. You don't know and you're super anxious about it and then all of a sudden you're extremely dysregulated and then blah you know things blow up as opposed to knowing, okay.

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There's going to be financial disclosures in your divorce. You are going to need to produce your tax returns, your bank statements, your credit card statements, your bank accounts, you can have to list all of your assets and debts, pay stubs wherever they are.

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Pay steps. W twos.

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Even Even if during your marriage you kept your finances separate. So knowing that might be like, oh, okay, so I don't need to get all.

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Yeah.

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You want my what? When somebody is asking for that information or even if you're represented and your lawyers are asking for that information.

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They might just be, boop-boo, please provide booked up up in a very professional letter that can sound really angry and nasty because it's short sweetened to the point because I'm billing my client for this and I really don't want to charge them $500 to write a letter to ask you to give you the things that we all know you need to give us.

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But that's the reality of it.

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I don't have time to, yeah, I don't have time to write this touchy feeling letter.

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Yeah.

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Exactly. So how is that different a mediation you might ask? Well, in mediation, you can do a lot of different things, like oftentimes in a traditional litigation way, and I say litigation, meaning you don't necessarily have to be going to court.

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There are lawyers that settle cases all the time, very effectively, but I'm just saying as a model.

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That you don't have to you know you can still be living together and not know what to do yet.

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And say, hey, let's go to mediation and talk about this. Right, let's talk about what we're gonna do.

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And every mediator is a little bit different. I'm a what I call full service. Mediator, which meaning I'm like old fashioned gas stations.

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They don't even have those anymore. Like I remember, you know, they'll do your windshield wipers they'll put winter wipers flu they'll check your oil they'll add oil they'll bring you some popcorn and a coffee or maybe it's cracker jacks. I don't know.

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Yeah.

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I'm just thinking about like my grandpa. But that idea they could do all of the things, right?

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So So you still could have consulting attorneys for legal advice, but again, I'm a license attorney. You're a license attorney.

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So mediators like us, it's a little bit different than somebody who's not a license attorney and there may be times when that's an appropriate fit for your family.

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So I'm just speaking of from my experience because we could draft documents for you. We can draft your settlement agreements.

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If you're in mediation and somebody needs a stipulation to show a landlord that you have income in the form of support.

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Right.

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So they can qualify for a lease so that they can move out of the house so that you're not living under the same roof, it might be really helpful to have someone who can help as the neutral.

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With that document getting it filed with the court here it is boom and it's all mediated I mean it's all conversations that you're having in the mediation and and it may be that you have consulting attorneys that want to draft that but it's all the conversations that can that can be had and can be drafted so that you have what you need to meet your goals.

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So So that's one of the ways, right? So you can still be living under the same roof.

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You can maybe come up with some co-parenting schedules that allow the 2 of you while you're under the same roof to figure out how to share some co-parenting.

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Okay.

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And that might look like I kind of think of it like scaffolding. So if you're ever painting on the outside of a building and you are on a second story, you could take a ladder and lean it up and try to paint, but the higher you get.

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Less stable that ladders gonna be but if you have scaffolding that has lots of places where you can stand.

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Yeah.

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It's a lot easier to get where you need to go and you feel safe, you feel structured, okay, you can do this.

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You're supported.

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So it's You're supported, exactly. And so this idea of scaffolding with co-parenting while you're still living under the same roof because you haven't filed yet, you don't even know what you need to do.

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Yeah.

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And if you aren't doing it in this way, by the way, somebody has to file. That document with the court, probably 3 an attorney unless you're doing it yourself.

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And then the responding party has to be personally served with it. So it's not like, you know, you're offering somebody an orderve.

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This is at somebody that is not you or your spouse that's handing you these documents. And if you don't know it's coming, it can be very, very upsetting.

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It can be very, very upsetting. So. So that's a thing you can talk about in mediation and what that would look like.

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Okay.

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So back to my thing about the co parenting and scaffolding. You could come up with a schedule to like, okay, you're on duty on Monday nights and Tuesday nights.

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I'm on duty on Wednesday, Thursday nights. That means from pickup to school until take to school the next morning you're gonna handle.

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Homework, snack, bath time, bedtime, laying out clothes, doing whatever needs to be done.

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Sports. Practices. Right.

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Right? Yes, drop off pickups. And then the person that's off duty, even if you're still living under the same roof, makes themselves.

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Scarce like maybe you go leave maybe you go to the gym maybe go to a coffee shop and work maybe you work later or whatever so that it allows that parent who's on duty to handle the evening responsibility.

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Yeah.

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So what is this doing? It's giving you a chance to try out a schedule. And it may be that the parent who t typically does these things is not doing them, so it could be a little messy.

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Yeah.

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And that in and of itself is an invitation to like this is not the time to criticize what the other person is doing, right?

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You have the same goal, you want to ease the pressure that's on your kids with regard to how they're impacted by this.

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It's a conflict.

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The research tells us that kids, the divorce itself is not what's traumatic to children, but how the parents interact and the conflict that they're potentially exposed to that impacts them the most.

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So anyway, these kinds of things are just some of the examples of. Sort of information that you can get in mediation.

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While you're coming up with some agreement so that you could talk about it. Say that's not going to work because of XY, and z. Okay, so that's not going to work. What's your proposal?

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Okay.

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What do you propose? It sounds like you have a proposal that might work. And then they get an opportunity to communicate what that would look like and flush out the details.

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And then as the mediator you can sort of take some notes and and and kind of clarify that this is what they're agreeing.

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Sometimes those agreements will come out in the form of a written agreement. Sometimes the couples are comfortable with that just being their verbal agreements.

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If you're working with lawyers, sometimes lawyers will draft those up. But it's just a way to sort of begin to come up with some things that you can try out while you're under the same roof.

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Could be a couple of weeks, it could be a month, it could be a couple of months, but you could try it on and see how it works.

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Yeah.

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So then when they a couple does move into separate homes and the children then have 2 homes. It's an easier transition.

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Okay, Mom's on duty. Dad's on duty at mom's house or at dad's house or whatever that might look like.

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Right.

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So that's just some examples of how mediation can work and support families who are restructuring, which is another way I like to reference, you know, couples that are divorcing because it's

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Restructuring the family.

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Restructuring, we're structuring family. Yeah, I like that concept how you're talking about in terms of people can try these different schedules because what people understand what people need to understand is that when you go to court and you're filing that divorce petition and you're seeking a motion to establish temporary orders.

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Yes.

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It's literally like a bomb that goes off in your house. And boom! You know, someone's getting kicked out of the house.

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True.

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True. Yeah. Yes. Yes.

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You're getting a schedule like shove down your throat. That and it's horrible. Literally like a bomb that it goes off in your house as opposed to well, let's let's try this schedule.

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Okay, well that didn't work. Listen, let's maybe tweak it and let's let's figure this out instead.

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Right. And then you can even just say, hey, let's try this between now and our next session and see how it goes.

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Yeah, right.

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You know, and again, this isn't, you know, some families need a more specialized tool for the task.

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So one of the things I like to say is like mediation is sort of like working with the secret menu.

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You know, like Starbucks has the pink drink on the. Meet the secret menu. Okay, I don't know. I don't know.

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Working with the secret menu, I've never heard that. What is that?

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So here's the secret menu. In an out burgers are a thing in Southern California.

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Yeah.

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If you're a burger person, it's fast food, but it's supposed to be good spec.

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There's a secret menu. There's a secret menu in and out burger. Animal fries.

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I love it. I love it. Get out! What?

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Okay. Animal fries, their french fries covered with all kinds of crazy stuff. It's not on the menu.

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You're kidding me.

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People who order it know that it's like awesomely awfully good in all the good awful ways.

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Oh my gosh. Wow.

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And they know how to charge you for it. They know how to make it, but it's not on the menu.

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One

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Arnold Palmer is not on the menu. Arnold Palmer, golfer, but it's a half ice T half limited.

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Love that. Yeah. You're right. Yeah.

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Everybody knows it's not on the menu.

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Almost every restaurant if you say I'd like an Arnold Palmer they know how to make it they know how to bring it they know what it is everybody knows So, right, so mediation is like where you get to work with the secret menu.

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Okay.

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Now, it's not illegal, right? The stuff that you're doing in mediation is not illegal.

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Right, that's true.

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But it could be not following the default rules. Right, so like in California we have mandatory guideline child support, which means you've mom's income, dad's income, time share, boop, hit the button. Here it is.

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Okay.

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Every judge has this support calculator on a computer at their bench. Family law attorneys we have it. So it's not rocket science.

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Yeah.

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And the court must follow that. They don't have any choice. It's unless they can show that there's a reason to deviate from the guideline, right?

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Deviate.

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So now it may be that as a family you realize, hey, look, we're going to do this, this, this, this, this, and this.

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And that's not the guideline. It might be a little bit more, it might be a few bucks less, but in the end it all flushes out because it works for your family.

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You can do that. It's not illegal. The judge couldn't order it. But you could choose to do it because it makes sense absolutely for your family.

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And at the end of the day, it might flush out the exact same way, but it's not.

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Right.

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It's not. Based on a number that a support calculator generates. It's based on what the needs of your specific family might look like.

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So that's just an example of some of the secret menu things. The other thing would be things like.

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Yeah.

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Dividing assets, right? You could say that technically you have to divide all of the things. So I use this.

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Imagining you know you have a basket of fruit well the baskets pretty It's a lovely basket, but if you chop the basket in half, it's going to be a worthless basket.

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Okay.

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It's not going to hold anything. And it's not gonna look very good. And it's not gonna really be practical anymore.

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But that might be the default rule. Somebody needs to you need to value the basket, you get half of the value of the basket and then you're made whole and then you take the basket.

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Yeah.

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Well, or you sell the basket and you divide the proceeds. Well, what if there's fruit in that basket and there's grapes and there's oranges and a banana.

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Well, if you cut the banana it's not gonna be blast very long. Not gonna go very far but what if you sell the banana and share the proceeds?

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What if the grapes? You can divide the grapes. Or what if I only need the orange peel and you want the orange juice?

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You can do that. Now, it may be that there's some tax ramifications or financial aspects to that that need to be considered.

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So for example, you can't say cash and an account that's going to be taxed when you access it are even, right?

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Yeah.

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So you think about retirement dollars. If I'm getting retirement dollars. That's going to be taxed when I take it out if I'm not an eligible retirement agent.

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I'm definitely going to pay income tax on it if I am, right? There's some things in divorces that allow you to do certain financial things without a tax consequence.

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So those are important to think about. But back to that cash versus tact thing. So you can actually look at, well, what would it be if it was taxed?

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So the net amount, the bottom line is the same as the bottom line of cash. The court wouldn't do it.

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But if you are both with your eyes open and perhaps with the assistance of a certified divorced financial analyst or a CPA or another collaborative professional or team.

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Part of the divorce team finance person is saying, look, this is how this could be done. Then then it works, right?

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But those are the kinds of things that you can do in mediation that you really can't always do in litigation.

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Now again, there are lawyers who are very reasonable. They settle cases all the time. They're not litigation.

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They realize the impact on families and their clients. And the timeframe. So by the time you file your petition and getting a request for order on temporary child support or custody or division of an asset or exclusive use in occupancy of a home or in order to sell an asset.

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Right.

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Can take 90 days, 45 days, you might be able to get an expedited hearing, but you're going to spend a lot of money to get an expedited hearing.

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So those are all the kinds of things that you know, a lot of people don't realize when they when they when they come into this process and know that you can choose.

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To go a different way. And again, not all mediators are created equal. Right. Again, I do have a little bit of a bias towards attorney mediators, but some attorney mediators are like, this is what the judge would do.

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Okay.

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This is what you shall do. Which is not the the approach either this is mediation you are in control the mediator is there to provide a container to help you reach agreements, not to tell you what to do.

00:18:26.000 --> 00:18:28.000

Yeah.

00:18:28.000 --> 00:18:37.000

Right? This is a container for us to have a conversation. And sometimes people come into mediation and they get these, they get the information about the various topics.

00:18:37.000 --> 00:18:42.000

And they feel safe enough. That they can then go have a cup of coffee and talk about it. Then come back and say, hey, we were thinking about this.

00:18:42.000 --> 00:18:45.000

Hmm.

00:18:45.000 --> 00:18:46.000

Can you explain how that works? And then the mediator can give the information about how that works.

00:18:46.000 --> 00:18:55.000

So that they understand, like, how would you come up with an equalizing payment? For a piece of real estate.

00:18:55.000 --> 00:19:01.000

How does that work? If I want to stay on the mortgage, we're not going to be able to get a mortgage at the same price that we have now.

00:19:01.000 --> 00:19:02.000

Right.

00:19:02.000 --> 00:19:08.000

So what do we do? So anyway, that you can see that there's. There's really an opportunity.

00:19:08.000 --> 00:19:16.000

To just be a little bit more creative, not a little bit, probably a lot more creative. And it's not for everybody for sure, but for a lot of folks who are.

00:19:16.000 --> 00:19:22.000

You know, facing divorce and separation, knowing that there's another way that you don't have to just go.

00:19:22.000 --> 00:19:28.000

You know, burn it all down by filing because it can really just blow things up really fast.

00:19:28.000 --> 00:19:35.000

And you, it's so true and I want to get back to the point that you mentioned. That mediation is a container.

00:19:35.000 --> 00:19:38.000

Can you explain that concept?

00:19:38.000 --> 00:19:46.000

Yes, so the idea that mediation is a container is you've agreed it's voluntary. You're both saying yes, I'm coming to the table.

00:19:46.000 --> 00:19:47.000

In litigation, you have no choice. You're so file. Boom, here's the response.

00:19:47.000 --> 00:19:50.000

Right.

00:19:50.000 --> 00:19:54.000

You better get an attorney or you better try to be a good lawyer. You're yourself. Good luck with that.

00:19:54.000 --> 00:19:55.000

Yeah.

00:19:55.000 --> 00:19:58.000

So, so, you're both agreeing to be here. It's confidential, right?

00:19:58.000 --> 00:20:07.000

So it's like no one's, you know, gonna be, your documents aren't gonna put to be put in a public court file.

00:20:07.000 --> 00:20:17.000

Except for your petition will be and, and your settlement agreement would be and if there's some stipulations that you've agreed on those would be public but the conversations are not.

00:20:17.000 --> 00:20:29.000

So you're, you know, sometimes we see families who have who have businesses and you know there's there's there's things that are a little messy in their finances that need to get cleaned up.

00:20:29.000 --> 00:20:30.000

Yeah.

00:20:30.000 --> 00:20:38.000

I'll just say it like that. And they need a plan together to figure it out. Perhaps taxes haven't been paid or you know behind in some of these things and it's not uncommon whenever families are really stressed that all of that impact begins to cause things to just unravel.

00:20:38.000 --> 00:20:47.000

Debt goes up, things that need to be done don't get done, you know, assets don't get protected, the house doesn't get taken care of, property taxes don't get paid.

00:20:47.000 --> 00:21:03.000

And, and You know, it's kind of this big life event happening, but you need to talk about those things and you need to talk about them in a way that's not going to talk about them in a way that's not going to get anybody in trouble. Right?

00:21:03.000 --> 00:21:09.000

This is about how do we fix the trouble there is, okay? We made a mistake. We filed our taxes with the wrong.

00:21:09.000 --> 00:21:17.000

I thought we were divorced. I did, I did a single tax filing status and took head of household, but we're not divorced yet.

00:21:17.000 --> 00:21:18.000

Yeah.

00:21:18.000 --> 00:21:21.000

Oops, you know, those things happen and there's a way to address them in a confidential way.

00:21:21.000 --> 00:21:30.000

So that's the container. The other thing is, is that if you do need to talk about some of these co parenting things or you do need to talk about some of these finances.

00:21:30.000 --> 00:21:42.000

You can find the best tool for the task, right? In a in a mediated container. In other words, it might be that me as a mediator.

00:21:42.000 --> 00:21:43.000

Okay.

00:21:43.000 --> 00:21:51.000

And you're a collaboratively trained professional, as am I. So the collaborative divorce model, typically you would have each side having an attorney having a mental health coach and then there's a neutral finance person and a neutral kid person.

00:21:51.000 --> 00:21:52.000

Yeah.

00:21:52.000 --> 00:21:58.000

Well, not everybody chooses to do a collaborative model. Sometimes, you know, there's lots of ways that could look.

00:21:58.000 --> 00:21:59.000

Yeah.

00:21:59.000 --> 00:22:15.000

But the professionals that do this work make a difference. If you're a collaboratively trained attorney, which is my recommendation to be working with somebody that knows how to work.

00:22:15.000 --> 00:22:16.000

Yeah. Right.

00:22:16.000 --> 00:22:23.000

In this environment in these kinds of containers where people are already looking at how can we get these things resolved in the best way for everybody, not just for what I want, not necessarily what's the most convenient, but for the maximizing the resources for the family as a common goal.

00:22:23.000 --> 00:22:24.000

So, yeah.

00:22:24.000 --> 00:22:33.000

I love that maximizing the resources for the family and the common goal, whereas a litigation attorney would be like maximize a resource for just me and my client.

00:22:33.000 --> 00:22:34.000

Yeah. Yeah.

00:22:34.000 --> 00:22:41.000

Because that's your job as an advocate. That's your job. My my role when I'm a lawyer I have my sword and I have my shield.

00:22:41.000 --> 00:22:44.000

Yeah.

00:22:44.000 --> 00:22:45.000

Right.

00:22:45.000 --> 00:22:50.000

And you're not getting past me. Right? You want to talk to my client, you gotta go through me first, right?

00:22:50.000 --> 00:22:51.000

I love that.

00:22:51.000 --> 00:22:59.000

And And that means in letters, that means how are we gonna handle pickup. You know, after the game on Saturday, who's taking them to the game?

00:22:59.000 --> 00:23:03.000

What about Christmas? You know, the great-grandparents are gonna be in town. Can the kids go?

00:23:03.000 --> 00:23:09.000

I know it's your weekend. Of those things would have to go through your body God before they get to you.

00:23:09.000 --> 00:23:10.000

Okay.

00:23:10.000 --> 00:23:20.000

Technically, and, and again, like I said, I'm not, I have really the utmost respect for our profession.

00:23:20.000 --> 00:23:21.000

Yeah.

00:23:21.000 --> 00:23:28.000

I think people go into this work because they do want to help. They do want to make a difference and there's lots of people that and and and it's a need.

00:23:28.000 --> 00:23:29.000

Yeah, the family courts is a verb is broken.

00:23:29.000 --> 00:23:37.000

But there are, again, it's a broken system in my and my view, you know, they're, they're Family court, family court specifically, yeah, in terms of like being able to really reduce the impact on children.

00:23:37.000 --> 00:23:50.000

And again, if you're just 2 people that have been married. A long time and and you don't have anything but four-legged children, maybe it's different, but when you have even adult children, it can really impact everybody.

00:23:50.000 --> 00:23:55.000

So, and it doesn't, it just doesn't have to be that way. And I'm not saying that mediation isn't messy.

00:23:55.000 --> 00:24:02.000

It's hard. It is hard. You're sitting across the table from someone that you once loved with all of your being.

00:24:02.000 --> 00:24:03.000

Yeah.

00:24:03.000 --> 00:24:08.000

And now there's all this big emotion that's present there and I often call that the elephant in the room.

00:24:08.000 --> 00:24:13.000

Back in the day when we're sitting at a table there would always always be like an empty chair.

00:24:13.000 --> 00:24:27.000

And I would say this. Where that gets to sit. So all of it gets to be here. You don't have to pretend that I don't know that you don't know.

00:24:27.000 --> 00:24:28.000

Yeah.

00:24:28.000 --> 00:24:31.000

That there's this relationship that has come to the end of its life. And, so I often think of it like.

00:24:31.000 --> 00:24:42.000

You know, hospice for marriage really, or palliative care for relationships because you know, we're in a death phobic culture.

00:24:42.000 --> 00:24:43.000

That's phobic.

00:24:43.000 --> 00:24:48.000

The closest that we can get to death is zombie stories and Halloween where we all dress up in the ugly it's doing you know hacker movies right I did not coin that phrase it came from a fellow named.

00:24:48.000 --> 00:24:58.000

Stephen Jenkinson who you know, talks about being in the death trade because he was a hospice social worker for years.

00:24:58.000 --> 00:24:59.000

Hmm.

00:24:59.000 --> 00:25:14.000

So just talked about what it was like to be with people. Who and what it is in a culture where we don't want to be with death.

00:25:14.000 --> 00:25:15.000

Yeah.

00:25:15.000 --> 00:25:20.000

And things coming to its life expectancy. And not to be morbid. And I guess I should have said trigger trauma trigger in case that stuff that's uncomfortable for people because that's important to talk about but But what if, you know, we say till death do us part and what if that doesn't have to mean physically?

00:25:20.000 --> 00:25:27.000

What if this relationship had a life, it had a legacy, it has a life expectancy and it's come to the end.

00:25:27.000 --> 00:25:39.000

And if you have been with anybody who has been at the end of their life. With the cancer treatments or you know really deep disease and I you know have had the blessing and the burden like it's a blessing to be with.

00:25:39.000 --> 00:25:48.000

Beloved at the end of their life and it's also one of the most difficult. And relationships that are restructuring are often faced with that.

00:25:48.000 --> 00:25:52.000

So how do you hold both of those things at the same time. And that is the tricky thing.

00:25:52.000 --> 00:25:54.000

That's it. That's what we do.

00:25:54.000 --> 00:26:05.000

Yeah, that's where they going. Go into that mediation container and then I loved how you, you talked about and I think like to me like we're talking about the secret sauce, right?

00:26:05.000 --> 00:26:13.000

The secret menu, the secret menu is that you can bring in someone like this financial neutral who was essentially a financial expert.

00:26:13.000 --> 00:26:14.000

Right.

00:26:14.000 --> 00:26:19.000

Like, and you mentioned it's a CPA, a certified divorce financial analyst and don't know things about finances.

00:26:19.000 --> 00:26:36.000

I went to law school because I wasn't good in math. I was good in reading and writing and judges don't know about finances and things like that and and I always say always in my head like don't pay me to figure out your finances.

00:26:36.000 --> 00:26:37.000

Yes.

00:26:37.000 --> 00:26:40.000

Hey this financial expert this is what they do. And that's it.

00:26:40.000 --> 00:26:45.000

Right, that's the idea of the tool for the task, right? Who is the most cost-effective tool for this task?

00:26:45.000 --> 00:26:46.000

Yes.

00:26:46.000 --> 00:26:50.000

And the other thing is, when you think about what you're saying is like, how would a judge handle this topic?

00:26:50.000 --> 00:26:57.000

If you had a business, a business is a thing just like your house is a thing, just like my pen is a thing.

00:26:57.000 --> 00:27:04.000

It has to be valued. And identified, valued, and divided, right? At least in California.

00:27:04.000 --> 00:27:09.000

That's how businesses are handled. But everything has to be divided. But what if the judge doesn't know?

00:27:09.000 --> 00:27:19.000

The judge is like, look, I don't have time to sit down and do a forensic accounting of this business value or what your income available is for support from your self-employment income.

00:27:19.000 --> 00:27:34.000

The court can appoint. In California it's a 7 30 evidence code. An expert to write a report.

00:27:34.000 --> 00:27:35.000

Oh yeah.

00:27:35.000 --> 00:27:42.000

And tell the judge what their opinion is on the value of the business or income available for sport. So if the court could do it You can do the same thing in mediation and just have somebody that you identify that serves as a neutral.

00:27:42.000 --> 00:27:50.000

And my experience with this is that because they're amazing professionals that have been doing this, I often am working with folks that I've been working with for the last 20 years and sometimes they come into mediation.

00:27:50.000 --> 00:27:52.000

Right.

00:27:52.000 --> 00:28:01.000

Many of them are trained in mediation. They don't necessarily mediate like I do full-service stuff, but they know how to have conversations with both sides.

00:28:01.000 --> 00:28:03.000

They talk to both of you if one person is feeling anxious because they don't know anything about the business and they just never had to write a check.

00:28:03.000 --> 00:28:12.000

They're gonna have a lot of questions. And that financial neutral if they're doing their job well is going to answer those questions and be available to hear them.

00:28:12.000 --> 00:28:35.000

About what their concerns are or what their worries are. So that you can make sure that they're addressed.

00:28:35.000 --> 00:28:36.000

Yes.

00:28:36.000 --> 00:28:44.000

Effective way so that the parties can make the decisions that make sense for them. And my experiences is often when folks are working with the financial neutral, or have their own mental health coach for example, that's working with them.

00:28:44.000 --> 00:28:47.000

It reduces the amount of mediation time. Because again, you're using the tool for the task.

00:28:47.000 --> 00:28:49.000

True.

00:28:49.000 --> 00:28:57.000

And they come in and they can talk to the parties the parties can look at it say yes I agree no I don't we need to adjust this sometimes they come in and they've already decided what they're going to do because that's a really reliable source of information.

00:28:57.000 --> 00:29:02.000

So.

00:29:02.000 --> 00:29:15.000

And what I love about the financial expert, because attorneys and judges, we can only tell people what's fair as of this division right now, but these financial experts, they can model it out 10 or 20 years up into retirement 8.

00:29:15.000 --> 00:29:16.000

Yes.

00:29:16.000 --> 00:29:25.000

Well, no, this is what the transfer of assets need to look like. So things can be fair and equitable 20 years from now.

00:29:25.000 --> 00:29:26.000

And yeah.

00:29:26.000 --> 00:29:28.000

Right. Yeah, exactly. And the other thing too is like, let's say that you have an idea.

00:29:28.000 --> 00:29:34.000

You come in and you're like, well, I kind of have this idea and one person might have a view like our out to lunch.

00:29:34.000 --> 00:29:41.000

Okay, that person may be out to lunch. But let's run it. Let's have the CDFA.

00:29:41.000 --> 00:29:51.000

Scenario A, scenario B, scenario C. What difference does it make? And I don't mean what difference do it, but what literally what number?

00:29:51.000 --> 00:29:52.000

What's the number? It's a hundred bucks. Oh, right. Okay, so, so your proposal is X.

00:29:52.000 --> 00:29:59.000

Great. Oh, that's not too bad. Yeah.

00:29:59.000 --> 00:30:02.000

My proposal is why and there's 100 bucks difference.

00:30:02.000 --> 00:30:05.000

Okay, I love that.

00:30:05.000 --> 00:30:13.000

And sometimes it's really like that. And then for the person that's apprehensive, they are being respected for their view.

00:30:13.000 --> 00:30:14.000

Yeah.

00:30:14.000 --> 00:30:25.000

And for their proposal and it allows both of them to see what it would look like, right? Because at the end of the day, you want to come out of this, you have one shot, right?

00:30:25.000 --> 00:30:30.000

You don't get to relitigate things. If you're in mediation, it's going to be a final judgment just like other things.

00:30:30.000 --> 00:30:38.000

So you want to make sure that you've covered all of the things and you don't want to come out of mediation and find out later, well no one told me that that was a choice.

00:30:38.000 --> 00:30:39.000

Yeah.

00:30:39.000 --> 00:30:47.000

No one told me that. The default rules were that, you know, so the goal is to have informed consent.

00:30:47.000 --> 00:30:52.000

You went to the doctor and went in for a procedure you would like to know these are the 3 things that could go down.

00:30:52.000 --> 00:31:00.000

Hopefully we won't be taking out. Half along. Like, you know, I mean, those are the kinds of things you, wanna have that informed.

00:31:00.000 --> 00:31:09.000

Conversation and so the role if you're if you're listening to this and you're an attorney or you're in a mediator, that's that's the thing to be thinking about is giving the information.

00:31:09.000 --> 00:31:21.000

And then trusting. That this couple has what it takes to make the best decisions for their family. It's not my job to tell you what you should or shouldn't do.

00:31:21.000 --> 00:31:22.000

Yeah.

00:31:22.000 --> 00:31:23.000

That's your lawyer's job. If you're a you know they can say well you shouldn't do that because of XY, and Z.

00:31:23.000 --> 00:31:37.000

You should do this because of A, B, and C. Those may be some things that a consulting attorney could work with you for and it's encouraged if you're that person I wanted to just say sometimes people come into this And they're so.

00:31:37.000 --> 00:31:49.000

For obvious reasons, dysregulated and upset and heartbroken and emotionally distraught.

00:31:49.000 --> 00:31:50.000

Cool. Yeah.

00:31:50.000 --> 00:31:51.000

That can sometimes lead to an inability to think straight rationally and reasonably, right? And that's a completely legitimate thing.

00:31:51.000 --> 00:32:05.000

And sometimes people need. To have information that they can hear the way that they can hear it. And sometimes 2 people in the same room together can't It's like I'm sorry I can't hear what the mediator saying because I'm looking at this person and I want to poke them in the eye.

00:32:05.000 --> 00:32:12.000

Hi, please don't. Me on that. I've just recorded that. Please don't.

00:32:12.000 --> 00:32:13.000

Yeah.

00:32:13.000 --> 00:32:20.000

I'm not encouraging domestic violence, but but that feeling of like I just It triggers something. And so then they're not able to be present with what's happening.

00:32:20.000 --> 00:32:21.000

Yeah.

00:32:21.000 --> 00:32:32.000

So that's a tool as well to just know that you know as a mediator kind of just having a sense of okay these this this couple is sensitive around this topic like This is not something we need to talk about today.

00:32:32.000 --> 00:32:39.000

And just being mindful of that. But if it turns out that you're one of those people that you need a lot of information.

00:32:39.000 --> 00:32:48.000

It's okay to need information. And it's okay to get it. Just because you're in mediation doesn't mean you can't have a consulting attorney that you go and ask those questions of.

00:32:48.000 --> 00:32:49.000

I tell folks all the time you want to have informed consent it serves both of you to be educated about what's happening in this process.

00:32:49.000 --> 00:33:06.000

And if one person needs to go in with their face in their hands sobbing their guts out about all the things that they're afraid of and they don't want their soon to be ex-spouse to see all of that.

00:33:06.000 --> 00:33:07.000

Yeah.

00:33:07.000 --> 00:33:13.000

Maybe you need to have that conversation with a divorce coach. Maybe you need to have that conversation with an attorney who can say, okay, give yourself a breath.

00:33:13.000 --> 00:33:21.000

Here's the way the default rules work. This is what some support scenarios might look like. It's not as bad as it looks or maybe it is as bad as it looks and then what do we do?

00:33:21.000 --> 00:33:27.000

So those are the kinds of things to think about. And I know for me, I can only speak for myself.

00:33:27.000 --> 00:33:32.000

I give information to the clients. I'm guessing that you're as an attorney, you do that too. These are the default rules.

00:33:32.000 --> 00:33:33.000

It's how I reference what what the law is. Like I'm not telling you what to do, but this is how this thing works.

00:33:33.000 --> 00:33:43.000

This is how property division works. This is how it would work if you were doing this in a traditional sense.

00:33:43.000 --> 00:33:53.000

But giving folks that is often very reassuring for them to have them, because I think people coming into this process, they only see what they see on TV.

00:33:53.000 --> 00:34:03.000

They only see what comes to them through a Google search, which could be an attorney's website, which could be advertising.

00:34:03.000 --> 00:34:04.000

Yeah.

00:34:04.000 --> 00:34:12.000

Not that that's bad. But it, but it, but it might not be necessarily, you know, it could be a marketing tool, which is very different than like, look, here's just some information.

00:34:12.000 --> 00:34:18.000

That might be helpful to you, which is what you're doing with this podcast, right? Is here's just some information that might help you on your journey.

00:34:18.000 --> 00:34:19.000

Yes.

00:34:19.000 --> 00:34:28.000

That's reliable. And trustworthy. And that's, I think one of the things that's lovely about the container of mediation is that you have a guide.

00:34:28.000 --> 00:34:29.000

Yes.

00:34:29.000 --> 00:34:45.000

You have somebody that's gonna be there with you and I'm a nature nerd and I you know used in my former lives in this lifetime read you know led trips down the river and kayaking trips and backpacking and building sleeping without tents and making fire without matches and so.

00:34:45.000 --> 00:34:54.000

My experience in that is when I did it before I learned to do it was so reassuring. Like, wow, Okay, I don't gotta worry about that.

00:34:54.000 --> 00:34:57.000

Okay.

00:34:57.000 --> 00:34:58.000

Well.

00:34:58.000 --> 00:35:00.000

What do I need to pack? What do I need to bring? I'm not going to have water.

00:35:00.000 --> 00:35:06.000

So what do I need to bring? And, and a trustworthy guide. That's reliable will do that for you.

00:35:06.000 --> 00:35:15.000

And that's our role, I think, as mediators. Not going to tell you you can't pack your air mattress, but I can tell you that the impact of that choice is going to be its heavy to carry.

00:35:15.000 --> 00:35:31.000

So those are the kinds of things. You know that I think that we that we're in a really special place as mediators and and as attorneys family law attorneys I would invite all of us out there that are practicing family law.

00:35:31.000 --> 00:35:38.000

To remember that you are often the first responder. In this divorce process, in this family's restructuring.

00:35:38.000 --> 00:35:47.000

They know nothing. And even if they do, they're so flooded with emotion that they may not even remember how they helped somebody else go through this years ago.

00:35:47.000 --> 00:35:56.000

Right? So just know that that you have an opportunity to be a guiding force or presence better than force.

00:35:56.000 --> 00:36:02.000

For these folks and it will can impact how they choose to conduct themselves as they move through.

00:36:02.000 --> 00:36:06.000

So you know what's that in mind, right? And it's so funny when you said guiding for stars.

00:36:06.000 --> 00:36:09.000

Right. Right, I have to tell you, here's my little patron deity. Master Yoda.

00:36:09.000 --> 00:36:18.000

One. Well, I was gonna say, do you wanna be the guiding force in term of like the sits?

00:36:18.000 --> 00:36:34.000

Or do you wanna be like the Luke Skywalker like? Type of guiding force, but anyway, I digress, but that kind of just like, okay, so how can attorneys be, I guess, a guiding force in terms of I don't want to be so simplistic as to say for good.

00:36:34.000 --> 00:36:44.000

Meaning that litigation is bad. But how can attorneys, but is Kate right? Cause you come out of law school and it's like with me, right?

00:36:44.000 --> 00:37:10.000

I was trained as a litigation. I went to the prosecutors office and I had my sword into my shield up all the time is all about doing the good fight and when I transitioned to family law like I you know I was litigation and I was litigation hard and it took me some time before and took me kind of in a way growing up as well to realize that's not necessarily helpful to families because only I'm doing is just promoting

00:37:10.000 --> 00:37:11.000

Right. Yeah.

00:37:11.000 --> 00:37:18.000

conflict conflict conflict conflict. And I'm not really hoping this family heal. So how can you, you know, kinda switch that mindset almost?

00:37:18.000 --> 00:37:19.000

Like what?

00:37:19.000 --> 00:37:24.000

Yeah, that's a tough one, right? It's a tough one. Because in in the practice.

00:37:24.000 --> 00:37:33.000

You have to communicate with your client about everything that's going on. And depending on your case load, you could have a lot of cases to manage in a short period of time.

00:37:33.000 --> 00:37:34.000

Right.

00:37:34.000 --> 00:37:39.000

So crafting an email or a letter to your client or to the opposing attorney that's gonna go to their client.

00:37:39.000 --> 00:37:45.000

That's the thing that you have to remember. Every letter that you write. The other side is going to see.

00:37:45.000 --> 00:37:52.000

Right? And here's how. So if I am representing one side, I write a letter to the posing attorney.

00:37:52.000 --> 00:37:59.000

That attorney then has to send it to their client. If they're still living in the same house or they're going to be picking up Johnny at soccer Saturday at 9.

00:37:59.000 --> 00:38:11.000

That is probably arrived and maybe it came after 5 o'clock because I just got out of trial and now is the chance that I have to that my assistant has now forwarded that letter to my client after hours because that's just the nature of it.

00:38:11.000 --> 00:38:14.000

And they now have gotten this letter and

00:38:14.000 --> 00:38:16.000

Right.

00:38:16.000 --> 00:38:25.000

You know, so then they're gonna write back to their lawyer to say heck to the know or ABCD and whatever needs to have that lawyer's then gonna write a letter to me.

00:38:25.000 --> 00:38:29.000

That when I receive I then have to send to my client who's going to read it and be like, oh, what the heck?

00:38:29.000 --> 00:38:38.000

No, look, here's mine, right? So now you started this like thing. So it's a tricky piece, right?

00:38:38.000 --> 00:38:44.000

I am a huge advocate of educating yourself as a lawyer about what are the resources that are available to this couple.

00:38:44.000 --> 00:38:50.000

So there's the part of like this family needs resources. And you as an attorney are a healer of conflict.

00:38:50.000 --> 00:38:59.000

I think I had a law school professor. His name is leaving me right now, but he was a big Socratic method guy too.

00:38:59.000 --> 00:39:00.000

Okay.

00:39:00.000 --> 00:39:02.000

He scared the Pajibas out of everybody because he made you stand up and ask questions in the middle of property.

00:39:02.000 --> 00:39:15.000

So, but this idea of, you know, lawyers are healers of conflict. And we also have to remember that there's this duty we have to communicate with our clients and to manage a case and to do what we know we need to do to get the information before the judge.

00:39:15.000 --> 00:39:23.000

But there's also the behind the scenes part of getting this family through this process. And often we think that this is what they're doing.

00:39:23.000 --> 00:39:24.000

Alright.

00:39:24.000 --> 00:39:26.000

You against me. But in reality, it's not. We're both going this the same direction, which is to get this case resolved and to get this family moving forward.

00:39:26.000 --> 00:39:44.000

So I'm a huge advocate for resources. You know, co parenting plans for example, even choosing to come up with, you know, you know, have, set, you know, again, a lot of it's tricky too because attorneys have their own personalities.

00:39:44.000 --> 00:39:49.000

And if you don't like another lawyer, you know, those kinds of things definitely come in.

00:39:49.000 --> 00:39:57.000

Sometimes you can feel like there's a personal element to it, but my experiences is often, you know, there's just so much work.

00:39:57.000 --> 00:40:04.000

That it's hard to focus back down and remember the consequence of what I'm writing. And to, you know, follow Bill Eddy's Biff.

00:40:04.000 --> 00:40:14.000

Brief informative friendly and firm communications. You know, so that you're not stirring up a pot.

00:40:14.000 --> 00:40:15.000

Yeah.

00:40:15.000 --> 00:40:17.000

It's tricky. It's tricky. But the biggest part is to check yourself.

00:40:17.000 --> 00:40:24.000

Like sometimes, you know, at the end of the day, you're like, you know, that an attorney might be behaving in such an awful way that you're like sick of it.

00:40:24.000 --> 00:40:25.000

Yeah, it's hard.

00:40:25.000 --> 00:40:32.000

Widing that in a letter to an attorney that's gonna go to their client because you're sick of how they're behaving is not inappropriate.

00:40:32.000 --> 00:40:39.000

Appropriate avenue. So. The biggest thing I think is checking yourself first, right?

00:40:39.000 --> 00:40:48.000

As lawyers, we really do have to check ourselves and not get dysregulated ourselves and how we're litigation the case and think what if there's a good reason for that.

00:40:48.000 --> 00:40:54.000

And perhaps, you know, the reason that somebody didn't give, documents, maybe there's a good reason for that.

00:40:54.000 --> 00:40:58.000

It could be that they're afraid. Sometimes people lie because there's scared to tell the truth.

00:40:58.000 --> 00:41:04.000

So perhaps it's that they didn't know that since it's an account that they never touch that they didn't know they needed to disclose it, right?

00:41:04.000 --> 00:41:10.000

So there's all of the things that come in. But You know, litigation definitely has its place.

00:41:10.000 --> 00:41:15.000

There are times, there's evidence the court has to hear. I mean, those are very, very different things.

00:41:15.000 --> 00:41:35.000

Those are more cop to me. I see those as more complicated cases. I think there is room for mediation for those cases as well, but they do need to be managed very carefully because it's You know, I've mediated some cases where there's been domestic violence restraining order, so they do have to have you know, you definitely have to have some special tools in place to navigate that to make sure no

00:41:35.000 --> 00:41:42.000

one's violating court orders with regard to the restraining order, violating their own restraining order, and also protecting everybody, right?

00:41:42.000 --> 00:41:45.000

So. That was a long winded answer. That's not really an answer to a very difficult question.

00:41:45.000 --> 00:41:52.000

Well, I just I was just thinking about what you're saying in terms of the letter writing back and forth, right?

00:41:52.000 --> 00:42:07.000

For one thing, I mean, I had this visual image that came to my mind. It's like we as attorneys are setting off a little It's like we're sending out this chain of explosions.

00:42:07.000 --> 00:42:08.000

Yes, yes.

00:42:08.000 --> 00:42:14.000

Which actually harms the family, especially if they're still living in the same house. Is it just goes back to we're not helping these people kill and move forward we're keeping them stuck in conflict, which then tricks down to the kids.

00:42:14.000 --> 00:42:27.000

Right. Well, and the big thing I think to remember though is also is there certain times when you need to be very, very careful as lawyers.

00:42:27.000 --> 00:42:28.000

Right.

00:42:28.000 --> 00:42:31.000

If a couple is still living together, that is one of the most difficult places to be. Right. It is it I have had cases.

00:42:31.000 --> 00:42:35.000

I'm going to just leave it at that. It's a very, very difficult place to be.

00:42:35.000 --> 00:42:36.000

Alright.

00:42:36.000 --> 00:42:45.000

And it's not uncommon because there's not a structure or a container or the lawyers are doing their things, they if they're still living in the same house.

00:42:45.000 --> 00:42:46.000

Yeah.

00:42:46.000 --> 00:42:54.000

It could get out of hand really quick. And so if somebody calls the police at least in count somebody's going to jail and probably child protective services is going to come in because that's what happens whenever there's been some kind of episode in front of children and then juvenile dependency court kicks in.

00:42:54.000 --> 00:43:08.000

Because now they're protecting the children and it's created this whole thing just because It got just regulated really quick.

00:43:08.000 --> 00:43:13.000

And I'm not saying that's lawyer's fault. It's not. But it is something to just be mindful so that you're talking to your clients about, look, how do you, you know, there are certain times to have conversations about certain things.

00:43:13.000 --> 00:43:28.000

You know, don't do it in front of the kids. You know, there's there's resources and tips, which is probably another podcast altogether to talk about what kinds of resources there might be for for lawyers and how to guide their clients, but also for people who are in that situation.

00:43:28.000 --> 00:43:45.000

But it's just super important to remember you don't want to be having conversations about a things in front of the children as your children get older and they understand what's going on and maybe have been, you know, they know about what's happening.

00:43:45.000 --> 00:43:47.000

Do your best to pull back and not include them in that. It is not their business. They will eventually figure out all of the things.

00:43:47.000 --> 00:44:02.000

Now is not the time to be talking to your children like they're your friends about your their co-parent because children see themselves as half of you.

00:44:02.000 --> 00:44:03.000

Yeah.

00:44:03.000 --> 00:44:11.000

You know, I've got my dad's eyes and my mom's smile and you know, so if you hate mom that much and I have, do you hate me?

00:44:11.000 --> 00:44:24.000

Or or how does that work in the world and and then children can feel like they can't have a good time when they're having time with the other parent because they need to protect the person that has hurt feelings.

00:44:24.000 --> 00:44:29.000

So just knowing that those are dynamics that we don't want to put our kids in the middle, right?

00:44:29.000 --> 00:44:34.000

We want them to be the center. But we don't want to put them in the middle. And that's a super important thing.

00:44:34.000 --> 00:44:40.000

And I think sometimes, you know, the litigation process, that's the impact that I hear the most.

00:44:40.000 --> 00:44:44.000

Regret around. You know, even from lawyers, we all struggle. We sit around and talk shop.

00:44:44.000 --> 00:44:50.000

That's what we struggle with, like how do we help these people? Even when we know we got to do a job and judges worry about the same thing.

00:44:50.000 --> 00:44:54.000

You know, how do you protect these children from conflict?

00:44:54.000 --> 00:44:55.000

I.

00:44:55.000 --> 00:45:11.000

Right. And I think that comes into play in terms of, well, that's why the mediation container is great because you can bring disagreements, problems, issues, you know, you're pissed off at the other party, you can go ahead and talk about it with the with the divorce coach.

00:45:11.000 --> 00:45:20.000

And they can help resolve and translate. Feelings of. Almost call them like they're, you know, they're your emotional translator, the divorce.

00:45:20.000 --> 00:45:27.000

Yes, that's a good way to that's a good way to put it and having a coach Maybe cheaper than calling your lawyer.

00:45:27.000 --> 00:45:28.000

Yes.

00:45:28.000 --> 00:45:31.000

Who may or may not be somebody with that skill set. I mean, I always had that skill set.

00:45:31.000 --> 00:45:37.000

You know, I was like a handholder lawyer, so people knew that, you know, I was gonna be the person I was gonna explain all the things.

00:45:37.000 --> 00:45:46.000

And you're not a bad lawyer if you don't. It's just a skill set that some people have and some people don't and and then others are like, look, I don't want to bill you, your therapist will be cheaper than me.

00:45:46.000 --> 00:45:52.000

And now I notice even from like 5, 10 years ago, we have divorce coaches, which is different than therapists.

00:45:52.000 --> 00:46:03.000

That they can kind of coach you through you know they they're not teaching you to play soccer they're just teaching you and coaching you and how to handle the ball a little bit better, right?

00:46:03.000 --> 00:46:04.000

Right.

00:46:04.000 --> 00:46:13.000

So just know that those resources can sometimes be very, very, very well placed. And yes, it's going to cost you some money, but it's going to be cheaper than some of the other alternatives that you have.

00:46:13.000 --> 00:46:20.000

One of the things I like to think about too is you know, for lawyers and for, you know, our clients.

00:46:20.000 --> 00:46:31.000

Is this idea of what will you do with your 72? You could be like 72 what? Well there's research that tells us that once you've had a highly emotional event, which could be conflict, it just could be a high emotion event.

00:46:31.000 --> 00:46:44.000

It could be a negative. It could be a good emotion. For 72 h. You could potentially be dysregulated.

00:46:44.000 --> 00:46:55.000

Right, so you're upsetting saying here your ability to think reasonably and rationally goes down here like it's a bell curve and in mediation training this is the one thing they show you when your emotions are pair, your reasonable rationalist is down here.

00:46:55.000 --> 00:47:01.000

Dan Siegel, who's a psychologist who's written a lot of stuff on neurological brain stuff.

00:47:01.000 --> 00:47:02.000

Hello.

00:47:02.000 --> 00:47:10.000

He calls it, you know, brain in the palm of the hand, you know, like your prefrontal cortex, which is where you can be reasonable and rational and when you have an upsetting event.

00:47:10.000 --> 00:47:19.000

You can't get to it. You're in dinosaur brain. So this applies to us as parents, but it also applies to us as attorneys and even people in life.

00:47:19.000 --> 00:47:27.000

So what that means is for 72 h after this experience. You could be who.

00:47:27.000 --> 00:47:28.000

I didn't know that long.

00:47:28.000 --> 00:47:36.000

So what are you gonna do? I know, right? And they even say that you get a new puppy for 72 h for 3 days 3 weeks like That's a lot of time.

00:47:36.000 --> 00:47:41.000

And if think about it, if that's during your co-parenting time, how are you managing that?

00:47:41.000 --> 00:47:49.000

Kids are with you. Not with you. Okay. And even as a human in the world, you know, what am I doing in my 72?

00:47:49.000 --> 00:47:50.000

I just have this really upsetting event. I get into 3 h of traffic per hour traffic in LA.

00:47:50.000 --> 00:47:54.000

I don't know. Yeah.

00:47:54.000 --> 00:48:01.000

And I'm hungry. Like, so think about that. And so what do you do with your 72?

00:48:01.000 --> 00:48:14.000

And so it's just important. First off, I think knowing that that that's a phenomenon and it's kind of there's some scientific evidence around how our brain and our nervous system is impacted by those kinds of things.

00:48:14.000 --> 00:48:23.000

So if that's true or potentially true, How might you handle that? What are some things that you can anticipate and prepare for?

00:48:23.000 --> 00:48:39.000

To help you with that, right? So managing your automations, like, you know, Bill Eddy has some wonderful resources through the High Conflict Institute on, and we talk about this in our mediation training too, like How can I manage my own emotions by giving myself reassuring statements?

00:48:39.000 --> 00:48:45.000

Okay. It's going to be okay. Or getting into nature is another one. Maybe there's some certain things.

00:48:45.000 --> 00:48:51.000

So just anticipating and preparing for that. So that you know that it could be something that you're gonna gonna be dealing with.

00:48:51.000 --> 00:48:57.000

So what will you do with your 72? And have a list for yourself. Like what what might that look like?

00:48:57.000 --> 00:48:59.000

Right. You know, I wanna, okay, so now you've talked me into it, right?

00:48:59.000 --> 00:49:07.000

Gonna switch gears. I'm the one who, you know, I'm listening to this.

00:49:07.000 --> 00:49:09.000

I'm like, okay, you talked me into this. I don't want to go to court.

00:49:09.000 --> 00:49:20.000

I wanna do mediation because I wanna be in control of what's gonna happen. I wanna work with some people that that are experts and can it give me that information that I need to move forward and make informed decisions.

00:49:20.000 --> 00:49:30.000

How do I get there? Like in the sense of like, what attorney? Aren't our attorneys the same?

00:49:30.000 --> 00:49:33.000

To help me walk through this mediation. Okay.

00:49:33.000 --> 00:49:37.000

Yeah, not all mediators are the same. Yeah, not all mediators are the same.

00:49:37.000 --> 00:49:40.000

I, you know, you can take a 40 h divorce meeting or mediation training, which is not necessarily divorce mediation.

00:49:40.000 --> 00:49:49.000

So somebody who is experience in divorce mediation, you also know that there's styles of mediation.

00:49:49.000 --> 00:50:01.000

There's a valuative and facilitative like retired judges are sometimes when folks have lawyers they'll want to work with the retired judge as a mediator because they can really tell you what the court would do.

00:50:01.000 --> 00:50:02.000

Yeah.

00:50:02.000 --> 00:50:11.000

So, so there's lots of different things depending on where you are. And, and the style and kind of the dynamic of your, of your family can impact that too.

00:50:11.000 --> 00:50:17.000

But, you know, even just talking to your spouse to say, listen, I heard that mediation might be a choice.

00:50:17.000 --> 00:50:21.000

For us. I don't know where to begin, but this might be a good place to start.

00:50:21.000 --> 00:50:28.000

So finding out if it's a mediator that's that's full service I don't know if you're full service and that's just the thing I made up.

00:50:28.000 --> 00:50:29.000

Yeah.

00:50:29.000 --> 00:50:32.000

I have no idea if that's like a thing, but someone that can help you with the various things.

00:50:32.000 --> 00:50:44.000

Including like you know preparation of financial disclosures and those kinds of things like you know can you you know be the Sherpa for the whole process or is it just the mediator is just going to mediate a certain topic.

00:50:44.000 --> 00:50:51.000

And sometimes I have that too, like sometimes people just need to mediate a particular topic. They don't need me for a full service, something.

00:50:51.000 --> 00:50:56.000

They might need me to just do one little thing. Post judgment, they've already gotten their divorce and they need to modify something.

00:50:56.000 --> 00:51:02.000

So, so a lot of it just depends on what the needs are, but obviously they can reach out to you.

00:51:02.000 --> 00:51:06.000

Lonnie and say, Hey, we, want to figure out divorce media. We want it.

00:51:06.000 --> 00:51:12.000

We want to do this. Where do we begin? And every state again, I attend to like to work with folks.

00:51:12.000 --> 00:51:19.000

Not like to work. I encourage. Folks to work with someone that is a specialist in family law.

00:51:19.000 --> 00:51:20.000

Right.

00:51:20.000 --> 00:51:27.000

Right, whether that's in a family law attorney or someone that is a very experienced, in family, law mediation or family mediation.

00:51:27.000 --> 00:51:34.000

And again, knowing that sometimes, a mediator can do other things besides just divorce. Like we can do marital mediation.

00:51:34.000 --> 00:51:39.000

We can mediate, you know, want to get divorced, but some stuff needs to change and we need to work on some things.

00:51:39.000 --> 00:51:41.000

It could be premarital mediation. We're getting married, but we need to talk about these things.

00:51:41.000 --> 00:51:47.000

Maybe that's moving into a premarital agreement or prenuptial as we call it, or maybe it's just we need to talk about this stuff so that we go into this with the full conversation.

00:51:47.000 --> 00:52:12.000

So there's lots of different things that a mediator can do in a family context. And sometimes, you know, it's even mediating stuff like aging parents, you know, those kinds of things like it it can have a lot of different It can have a lot of different faces, but the big thing is, is knowing that there is another way.

00:52:12.000 --> 00:52:17.000

There is another way. And so I like, I like looking at folks who are collaboratively trained.

00:52:17.000 --> 00:52:30.000

So. Specialists in family law, trained in mediation has had some sort of 40 h mediation training as well as some family law mediation training because they are different.

00:52:30.000 --> 00:52:41.000

And just kinda switching, switching gears along that same thread, I guess, I mean, if I'm a client and you know, I come in, I met you and I'm Wait, let me rewind.

00:52:41.000 --> 00:52:45.000

So I'm your mediation client, right? I'm spouse. I'm spouse Jane.

00:52:45.000 --> 00:52:52.000

I'm Spouse Lonnie. Sorry I go to you and I say, hey, Lisa, what kind of attorney should I be looking for?

00:52:52.000 --> 00:52:53.000

Right.

00:52:53.000 --> 00:53:06.000

Because you know there are a lot of a family long horse attorneys. So what would you tell me? Would you just say, yeah, just pick, you know, Pick the family law divorce attorney that has the most Google reviews or would you suggest I look for another?

00:53:06.000 --> 00:53:07.000

Type of family.

00:53:07.000 --> 00:53:13.000

That's a really good question that I've never really pondered. That's a good question.

00:53:13.000 --> 00:53:16.000

Yeah, I mean, if you're looking for a mediator, you can talk to me.

00:53:16.000 --> 00:53:32.000

I might not be a fit for everybody. If somebody reaches out to me and they set up a meeting and you know either both of them together or sometimes one person is doing the research on mediators or they meet me through some, you know, podcast or, presentation webinar or something that I've done.

00:53:32.000 --> 00:53:37.000

They might reach out and talk to me and find out about how I work with families and then they tell their spouse.

00:53:37.000 --> 00:53:41.000

Hey, I spoke to this mediator. I really liked her. I think she could help us.

00:53:41.000 --> 00:53:54.000

Here's her contact information. You reach out to her. So I'll talk to each of them separately if that's the way that it flushes out or they can set a session with me together to say, you know, hey, Lisa, we want to talk to you about mediation.

00:53:54.000 --> 00:53:55.000

Right.

00:53:55.000 --> 00:53:59.000

I am not the best fit for everybody. And so depending on what their needs are, I can give them referrals to other mediators.

00:53:59.000 --> 00:54:09.000

And sometimes. You know co mediation is necessary right like sometimes there may be a more complicated element to things that we need to have a mental health professional be a mediator.

00:54:09.000 --> 00:54:22.000

There may be some special education issues that are really important topic that we need to have, you know, somebody else be part of our team so then it becomes more like co-mediation and I have done that where I'm a comedator with another mediator and we mediate together.

00:54:22.000 --> 00:54:30.000

I've done that with mediators from other states, right? So like I'm not I don't know how to do your judgment forms, but I can talk to you about these topics, right?

00:54:30.000 --> 00:54:34.000

So, or it may be that I'm working with a CDFA that comes in as a commutator.

00:54:34.000 --> 00:54:37.000

So I've done that in the past 2 where I'm co-mediating with the with the finance person when there's really complicated things.

00:54:37.000 --> 00:54:48.000

So oftentimes it's that. Again, when you're looking at finding lawyers, a certified specialist, designation is an additional bar exam that you take.

00:54:48.000 --> 00:54:56.000

You can't even become a certified specialist, at least in California until you've been practicing for 5 years.

00:54:56.000 --> 00:55:14.000

You have to have a lot of trial experience and recommendations from judges and opposing attorneys and and other attorneys so it and it's it's a thing an additional continuing ed so I always recommend looking for folks who have family law as their primary practice element, right?

00:55:14.000 --> 00:55:15.000

Right.

00:55:15.000 --> 00:55:25.000

Or certified specialist in family law because there are some attorneys that have just been practicing for someone they don't need it and they they clearly are specialists and it's a designation but that's typically what I encourage folks to do.

00:55:25.000 --> 00:55:28.000

And then the second element of that is someone that's collaboratively trained. Right. Yeah.

00:55:28.000 --> 00:55:38.000

For, for, for, for, for, for, mediation. What about if you just a person and I'm looking to hire a family law divorce lawyer to help me a mediation.

00:55:38.000 --> 00:55:40.000

Well, time the lawyer should really looking for. Yeah.

00:55:40.000 --> 00:55:45.000

Good question. Yeah, so you want to, that's what we call a consulting attorney, right?

00:55:45.000 --> 00:55:49.000

So you typically, they're not your attorney of record. They're not your sword in your shield.

00:55:49.000 --> 00:55:52.000

They're just going to be potentially available on the back phone if you need it. Like you can, they may have a retainer for a certain number of hours.

00:55:52.000 --> 00:55:59.000

So that you can be available to ask them questions. Sometimes I call it a lay of the land session.

00:55:59.000 --> 00:56:07.000

You're gonna have a lay of the land session with an attorney who's gonna have a lay of the land session with an attorney who's gonna take you through like what's happening here.

00:56:07.000 --> 00:56:12.000

What are my choices and those kinds of things? It could be a couple of hours. You would pay that attorneys hourly rate for that.

00:56:12.000 --> 00:56:16.000

You can ask them questions like, hey, how do you feel about mediation? What do you think about it?

00:56:16.000 --> 00:56:26.000

Would you want me to go by myself? Or would you go with me to mediation? Like sometimes attorneys are like, look, you just go, don't sign anything, don't agree to anything, but go, it'll be fine.

00:56:26.000 --> 00:56:30.000

And then some attorneys are like, no, this is like lawyers need to be present. Kind of complexity.

00:56:30.000 --> 00:56:40.000

So there's different layers to it. But ask that of your attorney. Ask them, you know, how, how they, how they like to work with clients in mediation.

00:56:40.000 --> 00:56:42.000

I know in San Diego County and in in California we have a there's there are lots of folks who do.

00:56:42.000 --> 00:56:54.000

Consulting for folks in mediation and back when I was you know with law firms I would be hired to go to mediation with my client.

00:56:54.000 --> 00:56:58.000

Like to go and be there so that they had legal representation for that. So it's called limited scope.

00:56:58.000 --> 00:57:09.000

Representation so that they can work with you just in that capacity. So whenever folks are working with me and mediation and they're not represented and they want to file their pleadings with the court.

00:57:09.000 --> 00:57:16.000

They are in pro per or self representatively again up in the top of the heading where they're name is and through the parties are.

00:57:16.000 --> 00:57:24.000

Whereas if you're a lawyer for a party, your attorney contact information is first and you're the attorney for that client.

00:57:24.000 --> 00:57:29.000

So if there are attorneys of record, it's a very different thing, but typically you can just ask this consulting attorney, you know, where are you with this?

00:57:29.000 --> 00:57:37.000

What do you think? Are there any pitfalls that I need to be aware of? And they can guide you and answer those questions.

00:57:37.000 --> 00:57:46.000

And then When you get to the phase of having a settlement agreement that is going to capture all of the details of your agreements, take it back to that lawyer.

00:57:46.000 --> 00:57:57.000

Take your financial disclosures, your, your co-parents, if you have kids, their financial disclosures, which for us in California is a schedule of assets and debts.

00:57:57.000 --> 00:58:06.000

And an income and expense declaration. Take those 2 sets of documents, yours and the other. With the settlement agreement, the proposed settlement agreement, and meet with your lawyer about that.

00:58:06.000 --> 00:58:16.000

I also encourage folks if you're working with the consulting attorney. And there are custody issues that are kind of in your in your mind.

00:58:16.000 --> 00:58:28.000

To discuss those. Make a list. These are the things that I'm concerned about and I wanna say this, make sure You tell the lawyer.

00:58:28.000 --> 00:58:37.000

All of the things the other side might say about you. Right? So don't just complain about the other person.

00:58:37.000 --> 00:58:47.000

You need to tell this lawyer. What your potential shortfallings are as well. In other words, an attorney advocate can't help you if you're not giving them all of the information.

00:58:47.000 --> 00:58:53.000

So it's really easy for you to come in and say, oh no, this happened, this happened, this happened, this happened, this happened, and I was like, I'm outraged.

00:58:53.000 --> 00:58:54.000

Yeah.

00:58:54.000 --> 00:59:02.000

Then you don't say Oh yeah, but I did XY, and ZXY, and ZXY, and ZXY, and Z.

00:59:02.000 --> 00:59:07.000

Right, because I don't wanna be finding out later that there's more to the story. So it's important to be forthcoming.

00:59:07.000 --> 00:59:08.000

And you.

00:59:08.000 --> 00:59:12.000

With your attorney when you meet with them.

00:59:12.000 --> 00:59:20.000

And here's another thing too that you're consulting attorney whether or not they're with you all the time in mediation or you're just using them a little limited scope.

00:59:20.000 --> 00:59:30.000

You should also ask your consulting attorney. If you were, you know, if I was a woman, I am a woman, but if you represented my husband, what would you what would your advice be to him?

00:59:30.000 --> 00:59:31.000

Good. Good. That's a good one. Yeah.

00:59:31.000 --> 00:59:33.000

Yeah.

00:59:33.000 --> 00:59:42.000

That's a good one, exactly. So kind of just being prepared for those questions, right? And the other thing is, is like, it's okay to interview people.

00:59:42.000 --> 00:59:47.000

It's okay to say, look, I have 3 people that I'm interviewing and I'm gonna talk to them.

00:59:47.000 --> 00:59:50.000

Like. Sometimes people are comfortable with the referral and they're like, no, that's good.

00:59:50.000 --> 00:59:54.000

And I'm kind of that person. If somebody tells me no, I like this person, this is what worked for me.

00:59:54.000 --> 01:00:01.000

I'm probably going to use that referral. But But even working with consulting attorneys, it's OK to meet with somebody and maybe you didn't click.

01:00:01.000 --> 01:00:06.000

Maybe you didn't, you weren't sure if the information that you got was what you were looking for.

01:00:06.000 --> 01:00:07.000

Okay.

01:00:07.000 --> 01:00:15.000

And it's okay to go meet with another one. And just know you're gonna pay their hourly rate for the time, but it may be money well spent for you to gather that information.

01:00:15.000 --> 01:00:24.000

And would you suggest that when someone's looking for any consulting attorney to help them with mediation or just looking for attorney to help them appear at mediation.

01:00:24.000 --> 01:00:33.000

Do you have any advice recommendations between a collaboratively trained attorney versus a litigation attorney.

01:00:33.000 --> 01:00:34.000

Oh, okay.

01:00:34.000 --> 01:00:38.000

Well, I kind of like both to be honest with you. Like, I mean, I really do think that the litigation experience is super helpful.

01:00:38.000 --> 01:00:45.000

Like I am grateful for my expertise. I have learned so much as a litigation. I have learned so much.

01:00:45.000 --> 01:00:53.000

And you know. It's important that you have that too. Like you don't want to have somebody that's never stepped in a courtroom.

01:00:53.000 --> 01:00:54.000

Alright.

01:00:54.000 --> 01:00:59.000

Necessarily if you're dealing with the case that's gonna go there. If this is a case that's potentially gonna blow up.

01:00:59.000 --> 01:01:00.000

You want to be with somebody that's capable, strong, knowledgeable, and also going to be able to guide you well.

01:01:00.000 --> 01:01:12.000

Like you don't want to have somebody who doesn't know when to retreat.

01:01:12.000 --> 01:01:20.000

You also don't want to have somebody. That doesn't know when to forge forward.

01:01:20.000 --> 01:01:21.000

Right.

01:01:21.000 --> 01:01:26.000

Right? Because sometimes, sometimes you have to and that's a really hard position to be in, but sometimes you have to.

01:01:26.000 --> 01:01:40.000

There are situations and that's a story for another day. Where you really do need to do that and you need to be in strong capable hands especially when there's been you know you know, dynamics that are super unhealthy and very toxic and and troublesome.

01:01:40.000 --> 01:01:47.000

Like it's important that you have somebody that is gonna help you navigate the court. Side of it and that is where you do need somebody that has litigation skills.

01:01:47.000 --> 01:01:51.000

So if that's a law firm that has people that can do both of those things or someone that has those skills.

01:01:51.000 --> 01:01:56.000

I used to joke and say it's like, oh yeah, you speak softly and carry a big stick.

01:01:56.000 --> 01:02:01.000

You know, you want to, you want to be able to, you want to have the skill and the wisdom.

01:02:01.000 --> 01:02:08.000

For both. But oftentimes in mediation, you know, what you're asked to do as a lawyer when you're going to mediation.

01:02:08.000 --> 01:02:15.000

And you need to let your clients know this and clients you need to know this. What you see your litigation attorney do in the courtroom.

01:02:15.000 --> 01:02:22.000

Might be very different than what you see you're litigation attorney do in a mediation. It's a very different presence, right?

01:02:22.000 --> 01:02:28.000

And not all lawyers see it the same way, but sometimes in mediation, the client does the talking.

01:02:28.000 --> 01:02:35.000

In court, the lawyer does the talking. The client never speaks up. Do not talk over your lawyer in court, by the way.

01:02:35.000 --> 01:02:43.000

But the, but the lawyer does the talking in court. Unless their clients testifying. But in mediation, it might be that the client needs to be speaking.

01:02:43.000 --> 01:02:53.000

It might be a skill that would be really good for the client to speak up and and and again depending on the kind of mediator, if it's a retired judge, every every mediator is a little bit different, but.

01:02:53.000 --> 01:03:01.000

But you're going to be working in a more, you know, going to be working in a more, you know, creative process in, in a mediation.

01:03:01.000 --> 01:03:07.000

You're going to be looking at proposals, right? My proposal is, and the person hearing a proposal can say yes.

01:03:07.000 --> 01:03:23.000

Great, we've got an agreement. They can say I have some questions. Okay, well what are your questions and and answer questions and know that questions are appropriate when someone makes a proposal asking the right kind of questions, but then having a lawyer that can that can look at, okay, well, this is your best case.

01:03:23.000 --> 01:03:29.000

Like if we went to core and one on everything. Knowing full well that you know you're probably not going to win on everything.

01:03:29.000 --> 01:03:30.000

That never happens.

01:03:30.000 --> 01:03:42.000

Right, but if we did, this is your best case and I'm not even necessarily talking about the getting to yes best case alternative to negotiated settlement kind of a thing but what if you want on everything that you were saying?

01:03:42.000 --> 01:03:45.000

And what's their proposal?

01:03:45.000 --> 01:03:51.000

And where do those things line up? And how much are you spending to be here today? Like there's a retired judge.

01:03:51.000 --> 01:03:58.000

Who used to do this. The first thing out of his mouth was, okay, good morning everybody. He writes up his hourly rate, which is like, $750 an hour.

01:03:58.000 --> 01:03:59.000

Oh wow.

01:03:59.000 --> 01:04:05.000

He's retired, she was fantastic. And, and then he would ask Miss Kiselburg, what's your hourly rate?

01:04:05.000 --> 01:04:09.000

Right now, are they rate-up? And then other attorney, what's your early rate? BIT them up.

01:04:09.000 --> 01:04:17.000

And if we had any paralegals or anybody there, okay, hourly rate. And then turn to the parties and then what do you get paid per hour to be here?

01:04:17.000 --> 01:04:23.000

Okay, and it's like, okay, we're scheduled for 8 h today. So he does it's all 8 h and he just left that number up on the board.

01:04:23.000 --> 01:04:32.000

Okay. Yeah.

01:04:32.000 --> 01:04:33.000

So.

01:04:33.000 --> 01:04:48.000

So there's that. And if you're done today. If you're done today versus a trial and sometimes the judge will say, OK, you've got a trial coming up, so and and we all knew like for every you know hour of court time it's going to be 3 at least 3 to 4 h of attorney prep time.

01:04:48.000 --> 01:04:57.000

I think the hard part though sometimes when you're using when you're when you're in mediation and your client and your using an attorney that's litigation trained.

01:04:57.000 --> 01:05:00.000

Is that they're still litigation. So that

01:05:00.000 --> 01:05:05.000

That's hard. And that, I don't really think that's effective to be honest with you.

01:05:05.000 --> 01:05:06.000

Yeah.

01:05:06.000 --> 01:05:10.000

I think That's not the place. And it's actually, you know, a really amazing opportunity to try on a different hat.

01:05:10.000 --> 01:05:17.000

But you have to let your client know because sometimes the client can't see you in that light anymore.

01:05:17.000 --> 01:05:22.000

They're like what? Where are you? Like all of a sudden you're being collaborative.

01:05:22.000 --> 01:05:29.000

Like what? But it's serves them to do that. And often when I'm the mediator and I have attorney mediators, I acknowledge them.

01:05:29.000 --> 01:05:40.000

And I let their clients know you are going to see your attorneys. Participating differently today than perhaps you saw them in court and in how they've communicated with each other before now.

01:05:40.000 --> 01:05:47.000

So I just want you to know that that's normal. It's healthy and it serves you both that they do and it's welcome here.

01:05:47.000 --> 01:05:53.000

So it just sets the stage and sets the table for how we're going to be working together. Right.

01:05:53.000 --> 01:05:54.000

Yeah.

01:05:54.000 --> 01:05:58.000

So I think that's an important piece to remember too.

01:05:58.000 --> 01:06:12.000

So, so I'm almost kinda seems like you're talking about like so if people had gone down this court road of litigation and now they're with you with their litigation and now they're with you with their litigation and now they're with you with their litigation and now they're with you with their litigation attorneys, they're a. And now they're with you with their litigation attorneys. They're a to matter.

01:06:12.000 --> 01:06:24.000

That's where you're setting the But to my head it almost kinda like, you know, my preference is if I'm at the very beginning and I'm with like husband and wife I prefer attorneys that are collaboratively trained as opposed to litigation.

01:06:24.000 --> 01:06:30.000

Well, yeah, because the thing about litigation is you have to do it a certain way for it to be ready for you later.

01:06:30.000 --> 01:06:31.000

Yeah.

01:06:31.000 --> 01:06:40.000

You know, you don't have to prepare for trial if you get ready for trial, right? So you start with day one, you might take a deposition of both, you know, you might take a deposition of the parties if they have a business, you might be subpoenaing business records, you might be getting bank records directly from the banks.

01:06:40.000 --> 01:06:46.000

You might do a demand for production of documents. That signed under penalty of perjury about this is the documents I have.

01:06:46.000 --> 01:06:49.000

They're produced here. If I don't have them, this is where you'll find them.

01:06:49.000 --> 01:07:05.000

Could be a request for admissions. Admit or deny. It could be a series of very specific interrogatories identify any and all, you know, business professionals that you have discussed this particular thing.

01:07:05.000 --> 01:07:11.000

I mean, you can imagine, you know, this and then it's sent to the other attorney.

01:07:11.000 --> 01:07:15.000

And they have a certain amount of time to get it back. And, and then there's the things, right?

01:07:15.000 --> 01:07:27.000

So that doesn't even count the fact that you have to do an income available for support analysis with the neutral that you need to have a summary or a business valuation done or a forensic exam, a valuation of a business so you know what its value is.

01:07:27.000 --> 01:07:33.000

There's those kinds of things that still need to happen. And sometimes you need to get those subpoenaed records.

01:07:33.000 --> 01:07:50.000

To be able to do that. So that's part of the strategy in in more complicated cases that you know you need to be aware of and a lot of times I say to folks you know you may think that your finances are super simple because you're like oh yeah I'll be dead we do this it's not a problem it's not complicated And then once you get into it, you're like, okay.

01:07:50.000 --> 01:07:52.000

Right.

01:07:52.000 --> 01:08:05.000

you got 6 businesses. 2 of them are not in the US. And then you've got 12 pieces of real estate and half of them are in.

01:08:05.000 --> 01:08:06.000

Oh.

01:08:06.000 --> 01:08:10.000

Another state and another country. Okay, got you. All right. And you own the prior marriage and then you had a trust that bought bought these and it's held here and so all of a sudden there's this complexity.

01:08:10.000 --> 01:08:17.000

But you've lived it, so it's not complicated to you, but there may be nuances to it in a family law aspect that need to be tended to.

01:08:17.000 --> 01:08:21.000

So part of it too is also managing your expectations about like is your case complicated or not. And the goal would be to just efficiently and effectively gather that information.

01:08:21.000 --> 01:08:30.000

And sometimes there's things that lawyers can do that clients can't. You can't send a subpoena.

01:08:30.000 --> 01:08:36.000

It's, I mean, I guess you could as a self-ripent when it's self-rerepresented, it might be hard to do.

01:08:36.000 --> 01:08:45.000

Whereas attorneys can can gather kind of information that's needed to get things settled. So if you line all of those things up.

01:08:45.000 --> 01:08:52.000

You still have to do it. So, and when you get to trial, you have to either have a witness or a document.

01:08:52.000 --> 01:08:57.000

When you get to your case in chief. So if you don't have that, then you're not prepared.

01:08:57.000 --> 01:09:03.000

So obviously talking early in mediation where you can begin to guard or work together. These are the list of documents that we need.

01:09:03.000 --> 01:09:08.000

These are the things that we need. Are they obtainable? Who can obtain them? By when can you obtain them?

01:09:08.000 --> 01:09:18.000

How are we going to use them? Do we need to have a special master or a neutral to just review those documents and garner those so there's a way to manage a complicated case.

01:09:18.000 --> 01:09:21.000

To where you're bringing all of that stuff together. So you're still getting the information.

01:09:21.000 --> 01:09:25.000

You're just not necessarily litigation to get the information.

01:09:25.000 --> 01:09:40.000

And I think it just goes back again, circling back again to what we talked at the beginning. That's one of the benefits of mediation to being this mediation container and just have this open dialogue exchange of information, how are we going to do it and have it be the most cost-effective?

01:09:40.000 --> 01:09:47.000

Because what you just described that process of litigation and So extend the subpoenas and territories.

01:09:47.000 --> 01:10:05.000

Yeah, I mean, there there's the cost of actually issuing it, but then there's the cost of, you know, the financial institution copying them and sending them to you and then there's the cost of it comes into the custodian of records who then gets it to you and then your paralegal needs to do whatever and your law clerk needs to do whatever and then you need to respond to

01:10:05.000 --> 01:10:07.000

say, oh, you gave us this, but you didn't give us that. Like. I ask.

01:10:07.000 --> 01:10:10.000

And then the lawyer does the final review. We're talking. So much money.

01:10:10.000 --> 01:10:15.000

Yeah, just discovery. There are attorneys that are just discovery attorneys. There are attorney firms that have just attorneys that do discovery only.

01:10:15.000 --> 01:10:25.000

I have been one of those associates and boy is it a lot it's a lot. It's a lot.

01:10:25.000 --> 01:10:37.000

So what? As we as we close down here, what are your final, I guess your people who are kinda trying to figure out mediation is right for them as they embark on you know this journey.

01:10:37.000 --> 01:10:42.000

What are your final thoughts that you would tell that person?

01:10:42.000 --> 01:10:43.000

Trying to figure out like, you know. Yeah.

01:10:43.000 --> 01:10:52.000

Yeah, like where to go? Well, I would say, Start with the least restrictive thing.

01:10:52.000 --> 01:11:00.000

Right? Start with what's simple. Start with the low lying fruit. That would be my first invitation.

01:11:00.000 --> 01:11:04.000

Research mediation, if you're able to talk to your spouse, talk to your spouse.

01:11:04.000 --> 01:11:16.000

If you're not, gather that information yourself. They can reach out to you. I mean, I know this is a podcast that goes all over the world but I know that it you would probably answer an email from somebody to try to connect them with resources because we do have these networks across states, you know, that of these networks across states, you know, that of resources for people.

01:11:16.000 --> 01:11:19.000

You know, that of resources for people. But, you know, and I know that there are mediators that do both.

01:11:19.000 --> 01:11:29.000

But, you know, and I know that there are mediators that do both. They do litigation and mediation.

01:11:29.000 --> 01:11:35.000

So if they they probably represent clients. In mediation, right? Like I don't do that anymore at 1 point I did.

01:11:35.000 --> 01:11:42.000

I was a mediator and then you could also hire me as a consulting attorney but now I don't I don't work in cases where I represent one side or the other.

01:11:42.000 --> 01:11:49.000

But there are people that do, so if you find somebody that's a mediator, they're a certified specialist, they're training collaborative divorce, that might be a way that you could kind of bring down your list of possibilities.

01:11:49.000 --> 01:11:57.000

Of folks to reach out to to say, hey, listen, I heard about mediation. I think that's what I would like to do.

01:11:57.000 --> 01:12:01.000

Is that something you can help me navigate through. And they, you know, and again, That is a great place to start.

01:12:01.000 --> 01:12:11.000

And then if there are issues as they, because when we meet with clients, we know how to ask the kinds of questions that are potentially troublesome.

01:12:11.000 --> 01:12:15.000

And they can then guide you. That way.

01:12:15.000 --> 01:12:24.000

Okay, thank you. And, Lisa, before we close, what are some, what's a fun fact about you that no one would know just from looking at you.

01:12:24.000 --> 01:12:34.000

Fun fact. Well, I already told my big secret that I, I'm a super big nature nerd so like I like to do things outside and wild ways.

01:12:34.000 --> 01:12:40.000

Although as I'm getting older, I definitely am not interested as much and sleeping under, you know.

01:12:40.000 --> 01:12:50.000

Without a tent or making fires without matches. Those days are kind of. I'm really good with more comfort these days as my bones get older.

01:12:50.000 --> 01:12:51.000

Yes.

01:12:51.000 --> 01:12:55.000

I, I can't believe you know how to make a fire without matches. So you could be on the show survivor and you could make fire.

01:12:55.000 --> 01:12:56.000

Yeah.

01:12:56.000 --> 01:13:04.000

You know what, if I watched TV, that would be one of the things that is kind of I do actually I just love like how do people survive in the wilderness without anything?

01:13:04.000 --> 01:13:05.000

Yeah. Yeah.

01:13:05.000 --> 01:13:08.000

Like I'm fascinated with stuff by super nerd out on it. So.

01:13:08.000 --> 01:13:13.000

Well, listen, I wanted to say thank you so much for the work that you do for, for the invitation to be on the podcast.

01:13:13.000 --> 01:13:22.000

I feel like I talked a lot. This is a lot longer than probably we expected. And we covered a lot of bases.

01:13:22.000 --> 01:13:23.000

We did.

01:13:23.000 --> 01:13:27.000

But I do just like to say that, you know, family law is one of the most difficult areas of law practice in my opinion.

01:13:27.000 --> 01:13:38.000

And I have so much respect for the judges that do this work because it is not easy. If you're a family law attorney, I hope that you have found a way to nurture yourself.

01:13:38.000 --> 01:13:53.000

And to make sure that you have a way to decompress after you do this work because there are days that you know that things don't go the way that you want and you really do try your best and it doesn't it's hard to be doing this work whenever there's there's no winners.

01:13:53.000 --> 01:14:04.000

Right? So even in the days when I was litigation and I won my, you know, the outcome that I was seeking in my hearing and I come out and my client is in tears.

01:14:04.000 --> 01:14:12.000

Because they won. Because there's no winners. There are no winners. And so I just invite all of you out there that are navigating this.

01:14:12.000 --> 01:14:21.000

That, you know, I wish you the best. And reminding you that it is not always going to be as hard as it is now.

01:14:21.000 --> 01:14:26.000

Right? The early days are the hardest when you're in that in between place. You're not where you were.

01:14:26.000 --> 01:14:31.000

You're not where you're going, you know, but I do encourage you to find things that are gonna fill you up.

01:14:31.000 --> 01:14:41.000

Spend time in nature. I have no idea about what the magic of nature is but for some reason it's like the Church of the Great Outdoors it just kind of heals all wounds that and a little chips and ceso.

01:14:41.000 --> 01:14:42.000

Just say, so yeah.

01:14:42.000 --> 01:14:53.000

But that that idea of like of just finding those things to take care of yourself and just know that even if your co-parent or your spouse looks like they're fine and they're moving on and all of that.

01:14:53.000 --> 01:14:54.000

That it is hard for everybody no matter what face they're putting on no matter what it looks like.

01:14:54.000 --> 01:15:03.000

And then the final thing I would say is as you go through this process, you're gonna get a lot of advice.

01:15:03.000 --> 01:15:10.000

There's 2 times I say that you're going to get more unsolicited advice than any other.

01:15:10.000 --> 01:15:11.000

Oh, 5 pounds.

01:15:11.000 --> 01:15:17.000

One is when you're pregnant. And the other is when you're going through a divorce. And I invite you to think about this.

01:15:17.000 --> 01:15:25.000

Don't necessarily take the advice for what it is actually saying to you because it might not be wise.

01:15:25.000 --> 01:15:28.000

Okay.

01:15:28.000 --> 01:15:29.000

Yeah.

01:15:29.000 --> 01:15:34.000

They may be giving you advice that's not good and that you should not follow. But what you should receive it as.

01:15:34.000 --> 01:15:35.000

Right.

01:15:35.000 --> 01:15:39.000

As this is somebody who cares about you. And they want you to be well. And they know that this is hard and they're trying to connect.

01:15:39.000 --> 01:15:47.000

So here it from that place and accept it as that. And not necessarily as advice because it's super easy to get what I call negative advocates.

01:15:47.000 --> 01:15:53.000

People want to get together and cuss and discuss. As my southern granny used to say. Custom discuss all the things.

01:15:53.000 --> 01:15:59.000

But that's a way of connecting. And sometimes that's the best that people can do. And that's the only way they can get there.

01:15:59.000 --> 01:16:07.000

So just know that there there's going to be a lot of that coming. But try to find reliable guides that are inviting you to see it from a perspective that maybe not yours.

01:16:07.000 --> 01:16:08.000

Hmm.

01:16:08.000 --> 01:16:10.000

And the number one thing is to remember your kids. Right, don't don't let them get don't let them be stuck in the middle of this.

01:16:10.000 --> 01:16:20.000

They're going to get through it and their resilience comes between it only takes one of the 2 of you.

01:16:20.000 --> 01:16:26.000

To get it right. And it seems odd, but It's kind of true, so.

01:16:26.000 --> 01:16:33.000

You said. So have them be the center but don't place them in the middle. Well, Lisa.

01:16:33.000 --> 01:16:40.000

Yeah, like they're they're your they're your legacy and so you can what do you want your kids to say about this divorce process someday?

01:16:40.000 --> 01:16:41.000

Wow.

01:16:41.000 --> 01:16:47.000

They want to be able to say, wow, my parents both came to my graduation and I felt good going up to either one of them and running and hugging.

01:16:47.000 --> 01:16:53.000

When I graduated from high school, they were both sitting there and I didn't even care who else was there because I knew they loved me and they were gonna be nice.

01:16:53.000 --> 01:17:03.000

I didn't have to elope when I got married because I knew they'd both be able to behave themselves at and I wouldn't have to choose which of my dad's is going to walk me down the aisle.

01:17:03.000 --> 01:17:04.000

Oh my god.

01:17:04.000 --> 01:17:11.000

So think about that. Think about that. Think about that because you can change it. You can think about that, your future self.

01:17:11.000 --> 01:17:12.000

Can advise your present self. I know that's a little you know, think about what you want this to look like at the end.

01:17:12.000 --> 01:17:17.000

Oh! Yeah.

01:17:17.000 --> 01:17:25.000

How do you want to feel at the end? And how do you wanna be? You're gonna have an ongoing relationship with this person whether you want to or not.

01:17:25.000 --> 01:17:26.000

You're gonna be co-parent.

01:17:26.000 --> 01:17:29.000

Break that down. Write that down. That's your that's your goals at the end of this.

01:17:29.000 --> 01:17:31.000

Yeah. Exactly, exactly.

01:17:31.000 --> 01:17:36.000

Elisa, it's been a pleasure. Thank you so much. And how do people get a hold of you?

01:17:36.000 --> 01:17:37.000

You're in San Diego, California.

01:17:37.000 --> 01:17:45.000

Oh yes, I'm in San Diego. I'm in California, but, that's the beauty of the blessing and the burden I guess of COVID is that now we're all over the place.

01:17:45.000 --> 01:17:52.000

Like I have clients that are not just here because people live all over the place but you can go to my website Elisa Kiselberg.

01:17:52.000 --> 01:17:58.000

Calm it's kind of under construction, but that's where you can find me if you and your spouse are thinking about me.

01:17:58.000 --> 01:17:59.000

Mediation and you would like to talk with me, you can, you know, book a little bit of time.

01:17:59.000 --> 01:18:17.000

To ask questions. I'm happy to help with those kinds of things. And, Yeah, if it's if you're in California, I'm obviously this is where my my legal expertise lies, but.

01:18:17.000 --> 01:18:22.000

You know, I know just like you, Lonnie, we're happy to be resources for you.

01:18:22.000 --> 01:18:23.000

So.

01:18:23.000 --> 01:18:31.000

Well, again, thank you so much for coming on and being a service and just sharing all this knowledge that you have about mediation.

01:18:31.000 --> 01:18:32.000

And, family law in general, thank you.

01:18:32.000 --> 01:18:33.000

You're welcome. You're welcome. And I wanted to say to all the family law attorneys out there, hang in there with it, right?

01:18:33.000 --> 01:18:56.000

Like. Fine, find your sweet spot. Find the thing that brings you joy and just remember that who you are makes a difference and give a bad day don't take it out on opposing attorneys go take care of yourself don't let your family be a divorce case don't let your health get sucked down the whole because it's a lot of work.

01:18:56.000 --> 01:19:00.000

It's a lot, it's a lot of emotional energy to do this work. So, you know.

01:19:00.000 --> 01:19:01.000

Walk gently in the world. Well, thank you, Lonnie, so much. It really is a pleasure to be here.

01:19:01.000 --> 01:19:05.000

There you go. Okay. Thank you.

01:19:05.000 --> 01:19:10.000

Thank you for the service of what you do and it's a pleasure and we'll see you soon.

01:19:10.000 --> 01:19:23.000

And tell my listeners stop there. Thank you again for listening to another episode of the Acuna Law, Akiona Family Law Podcast we're in we talk about anything and everything that intersects in the areas of family law and divorce.

01:19:23.000 --> 01:19:33.000

Until then, until next time, be well. And in. Thank you so much. I was wow, wow, we talked for a while.

01:19:33.000 --> 01:19:34.000

Yeah.

01:19:34.000 --> 01:19:38.000

You are welcome. I know I'm like, holy cow, we covered a lot too. I'm like, I don't know if I went off the rails a little bit, but.

01:19:38.000 --> 01:19:43.000

So what I'm gonna need from you then as, you know, I'm gonna need a headshot and then my team will reach out to you and then when this podcast is edited and ready to go post up.

01:19:43.000 --> 01:19:53.000

Cool, I have no idea