January 11, 2024 • 42 mins
Discover the surprising truth behind the role of attorneys in divorce mediation and why you should never underestimate their value in steering you toward fair outcomes. As we navigate the complexities of legal separation, we shatter the myth that mediators can, or should, replace the need for expert legal advice. Their seasoned insights reveal the nuances of choosing a lawyer who doesn't just understand the mediation process but champions it, ensuring your decisions are both informed and align with your objectives.
Embark on a practical exploration of how to select an attorney who prioritizes efficiency and cooperation—traits that can not only lower costs but also reduce stress. The Three Wisemen of Divorce explore the vital balance between legal advocacy and the collaborative essence of mediation, a balance that empowers you to maintain control of your divorce journey. Learn how the right legal counsel operates, whether they're offering guidance from behind the scenes or actively participating in mediation sessions, and how they can protect your interests without sacrificing the spirit of cooperation.
Finally, we delve into what it means to work with a truly mediation-friendly family law attorney, one who's equipped with specific mediation training and a deep understanding of the collaborative process. We emphasize the strategic value of involving your lawyer early on, particularly when it comes to crafting a robust marital settlement agreement that reflects all parties' voices. Our expert panel lays out the importance of legal expertise in forging a cooperative resolution, ensuring that every decision made in mediation respects your goals and stands up to legal scrutiny. Tune in for an eye-opening discussion that may just change the way you view lawyers in the world of divorce mediation.
The Three Wisemen of Divorce are divorce experts Mark C. Hill, CFP®, CDFA®, Financial Divorce Consultant; Peter Roussos, MA, MFT, CST, psychotherapist; and Shawn Weber, CLS-F*, Family Law Mediator and Divorce Attorney.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Shawn Weber (00:00):
But anyway.
Well, why don't we get started?
Yeah, yeah.
Peter Roussos (00:03):
And I think we can.
Shawn Weber (00:05):
Maybe what we can do is we can introduce this as a
series Like.
This is part one.
We're going to talk about whyit's important to have attorneys
involved in your mediation, butstay tuned.
We're going to talk about whyit's important to have a
financial professional and whyit would be important to have a
mental health professionalinvolved in your doors case.
Yeah, sounds good.
Ok, do you guys know any goodlawyer jokes?
(00:26):
Welcome to the Three Wisemen ofDivorce Money, psych and Law
podcast.
Sit down with the Californiadivorce experts financial
divorce consultant Mark Hill,marriage and family therapist
Pete Russoes and attorney SeanWeber for a frank and casual
(00:49):
conversation about divorce,separation, co-parenting and the
difficult decisions real peoplelike you face during these
tough times.
We know that if you are lookingat divorce or separation, it
can be scary and overwhelming.
With combined experience ofover 60 years of divorce and
conflict management, we are herefor you and look forward to
(01:09):
helping by sharing our uniqueideas, thoughts and perspectives
on divorce, separation andco-parenting.
Mark Hill (01:18):
Well, the guy who passed away and you know, in his
mid-40s and went up to thepearly gates and was talking to
St Peter and St Peter looking inhis sheet and he goes, my Lord,
I was expecting a much olderman he goes.
Oh, you were just going by mybillable hours.
Shawn Weber (01:41):
Or the joke like why is it that the sharks don't
eat lawyers when they falloverboard?
Mark Hill (01:46):
They think er, you're there to help them find Correct
, yeah, so it's easier for himto get hang from her arms when
she's in a meeting with her guy.
He'll be fine if I ask thesameuriether, but I ask his
audience when you be here andyou're about to meet me, if you
may, absolutely Also for love atthe very beginning.
Peter Roussos (02:11):
So it's theiche of the matter that what do you
call a thousand lawyers chainedtogether at the bottom of the
ocean?
A Good start, a good start.
Shawn Weber (02:25):
It's like you heard .
You heard about the airplanethat crashed.
There was good news and badnews.
The good news it was all of thepassengers were lawyers.
That was good news, mm-hmm.
The bad news is one of thechairs was empty.
Peter Roussos (02:40):
I.
Don't often get this feeling,guys, but right now I have that
little discomfort that goes whenwe're we.
I think it's happened once ortwice Before, when he talked
about things that I thought move.
Is this appropriate?
Shawn Weber (02:58):
fool Macabre.
Mark Hill (03:00):
Yeah well, we like irreverent yeah.
Peter Roussos (03:02):
Yes, yes, yes.
Shawn Weber (03:04):
Well, well.
And the other thing is you know, we know about our audience.
Mm-hmm that there are a lot offolks in the audience that just
really have a poor opinion ofattorneys.
Yeah, and there's a reason forthat.
I think there's some attorneysthat are absolutely frankly
terrible, and they're usuallythe ones that have the billboard
on the highway.
Yeah you know, and, and theyrichly deserve their reputation,
(03:30):
but what happens is they ruinit for the rest of us well so.
Peter Roussos (03:36):
So what?
I'm curious, you know, Shawn,when you think about that kind
of attorney, you know what aresome of the stereotypes that
it's all about the bill of thelours that they're, you know,
just trying to be competitive asa way of combative, as a way of
earning additional fees right,I gotta suck you dry.
(03:57):
Mm-hmm, mm-hmm, it's, it's so.
What is it that that you thinkdistinguishes an exemplary
Attorney?
And let's, let's keep it in thecontext of a non adversarial
process that we're all committedto.
Shawn Weber (04:12):
Yeah, so I, you know we were talking about.
You know we all believe inmediation, right?
Yeah, yeah, where you can dothings outside of court and
divorce mediation is a great wayto do things.
I've always thought that theadversarial process that you
have when you go to litigationis destructive to families, so
it's why I stopped litigating.
But but I think there are somegood qualities to an attorney
(04:35):
participating in your mediationand I think a lot of times
people wrongly think oh, I'mgonna go to mediation, that
means I don't need to hire anattorney.
Yeah, and I think that's amistake.
I think Because the the role ofthe mediator, even if that
mediator is an attorney himselfor herself, it's important to
(04:56):
understand what that person'srole is.
So when I'm in a, when I'm amediator on a case, I have to be
neutral.
I always tell people I'mSwitzerland, but I.
That means that I am not in aposition where I can protect you
.
I Can't protect your interests,I can't advocate for you, you
(05:18):
know I I can't say, oh well,this deal isn't fair, so you
should not sign it, right.
Mark Hill (05:26):
I always say I you know, I cannot give you advice
right.
I give you information, but Icannot give you advice right
From your lawyer.
Shawn Weber (05:38):
I can tell you all day this is what the court would
do.
This is what the family codesays.
Yeah, this is what I thinkmight happen if you went to
court.
This is what a lot of otherpeople do, but that should or
should not piece that you'retalking about there, mark.
Yeah, that's for the lawyer toadvise you.
That's advice, and there's adistinction there and and.
(06:00):
And.
So you know I was mentioning toyou before we started recording
, pete, that about half mymediation clients are.
They have advising attorneysinvolved in their case about how
some don't, and I will tell youthat.
You know there are some caseswhere it's so simple that they
probably can get away with it,but most cases they definitely
(06:23):
benefit from having attorneyinvolved and I think the
outcomes tend to be moreequitable and more Fair even
though I sometimes say fair isthe F word.
They tend to be better outcomesfor the couple in terms of
having a mutually agreeable,respectful agreement.
Peter Roussos (06:42):
So if we bring it back to the cost, containment
or finances or or even the youknow stereotypical lawyer that's
just trying to run up the fees,what?
What do you notice about the?
The cost differential betweenmediation processes where they
(07:03):
have consulting attorneys andthose cases where they they
don't?
Shawn Weber (07:09):
I don't think it costs them anymore.
Okay, let me rephrase that.
I've seen mistakes made wherepeople agree to things that they
maybe shouldn't, that I'm notable to tell them.
You should not agree to that.
Mark Hill (07:23):
Like a life insurance policy that goes in perpetuity.
Shawn Weber (07:26):
Oh yeah, I had a guy that I talked to the other
day.
I did not mediate this case.
He mediated with somebody elseand he has a life insurance
policy that was required assecurity for future alimony.
He agreed to keep that lifeinsurance $500,000, but didn't
(07:49):
put a termination date on it.
So that agreement probably madetons of sense.
When he was 40, when he couldafford the life insurance policy
, he had a currently existinglife insurance policy.
But when he's getting older andthe term ran out on his 20-year
term and now he's 70 and hecan't afford the premiums that
(08:14):
would be required to pay forthis simple half-million-dollar
term policy.
He's had some health issues.
I mean this isn't going tohappen.
So he's in bad shape becausehe's required by his agreement
that he signed to have that lifeinsurance policy.
Now if he'd had that reviewedby an attorney before he signed
(08:37):
it and I checked with him he didnot If he'd had that thing
reviewed by an attorney beforehe signed it, the attorney would
have caught that and said, oh,you got to have a termination
date.
Good attorney would have.
Any reasonably good attorneywould have saw that would have
seen that.
But because he was thinking, hewas trying to be nice and he
(09:00):
was going to save money, didn'tdo that and then missed out.
The mediator didn't protect him.
I think the mediator probablydrafted a badly drafted
agreement.
That does happen.
Peter Roussos (09:11):
Well, sean, let me ask you, he's an attorney to
protect him.
Sean, let me ask you just interms of mediation process, I
give neutrality and not being anadvocate for either party.
If you're sitting with clientsand this question of insurance
(09:32):
comes up, can you be neutral butstill say, okay, you guys are
talking about doing this.
Let's talk about what happenswhen you are 65 years old, or 70
years old Like.
Is there a way that you canaddress those concerns, but do
it from that more neutralperspective?
Shawn Weber (09:50):
I do it by asking questions.
Go ahead, Mark.
Mark Hill (09:53):
Well, I also think that what's the insurance for?
It's usually to ensure support.
Support usually ends at somepoint when work terminates for
the payor.
So, building that into theconversation, and also when I'm
(10:14):
dealing with insurance, it'slike that's a declining
obligation.
So you get divorced at 40 andyou're going to work to 65.
You've got 25 years ofobligation.
That's a large number.
Halfway through that period, 12years to go, that's only half
the obligation you have, so youdon't have the need for as large
(10:35):
an insurance policy.
So often what I'll suggest isput two or three policies in
place with different durationsthat will drop off, so that
you're not being overcharged forit, frankly.
But again, this is the abilityto have people that do this all
the time at the table advisingyou.
(10:56):
Going back to one thing you saidbefore about lawyers, I wanted
to make a comment that there arelawyers and lawyers.
When I mediate a case, I alwaystell them I will require you to
get a lawyer because I can'tgive legal advice and I've got
to be very careful about theunauthorized practice of law.
(11:18):
I want you to have consultingattorneys in place or, at the
very least, a neutral partylawyer that will draw up the
agreement.
Well then I do all the CYAletters too if that's the case.
But then if I get a pushback,my response is wait a minute.
There's lawyers and lawyers.
(11:38):
The lawyers I'm going torecommend have two benefits to
them.
Number one they're mediationfriendly.
They're not going to blow thedeal up and try to get you to go
to court so they can earn moremoney.
Number two they know our workso they have a confidence about
the documents and the numbersthat we produced, so they don't
(12:01):
feel the obligation to go aheadand redo the work to cover their
themselves.
So I think it's not just thebenefit of having a lawyer, but
having the right lawyer.
Shawn Weber (12:14):
I think that's true .
Not every lawyer is createdequally, and so you want to
interview your lawyers, becausewhat you're looking for you're
not looking for someone to takea $20,000 retainer and take over
your case and become theattorney of record and go to
court for you.
That's not what you're lookingfor.
What you're looking for issomebody that be willing to take
a smaller retainer or bewilling to be paid hourly in
(12:36):
order to just give you theadvice you need to be able to
make the decisions duringmediation that you need to make,
and you know that's a veryimportant distinction.
I usually coach people on.
You know, when you're hiringthat attorney, this is what the
kind of thing you're looking for.
Make sure you explain to theattorney that you're in
mediation, that all you wantthem to do is provide advice and
(13:02):
that you will be making all thedecisions.
Thank you very much.
And if you get pushback fromthat attorney to like, no, I
can't let you do that.
If I'm representing you stufflike that I can't let my client
do things.
Those are the people you wantto avoid.
People that charge enormousretainers, that want to start
filing motions immediately.
(13:23):
Those are the people to avoid.
But the person is like oh yeah,so when you go to your
mediation, here's some tips onhow you might do in the
mediation regarding yourparticular issues, and then come
back to me and tell me how itgoes and I'll give you more
advice.
That's the kind of person youwant you know.
And there's also two ways thatattorneys tend to participate in
(13:47):
mediation.
One is they will be, as I justspoke of here, just a completely
advising attorney, completelyin the background.
Nobody ever really hears fromthat attorney, except for you
when you're meeting with yourattorney to get advice and maybe
to review the agreement.
And then there's the attorneythat will actually come to the
(14:08):
meetings with you and will helpwith the negotiation process and
actually represent you duringthe mediation sessions.
And that's a different kind oflevel of involvement.
Not every case requires that,but a lot of them will benefit
from that and I've seen it govery well.
(14:29):
And particularly when you havecases where the clients have a
bad dynamic with each other, orthe clients are struggling to
kind of understand what the lawis, and so they need to run off
to their attorney and they say,well, I can't agree to anything
until I talk to my attorney, andthen two weeks passes and they
come back and they have aproposal that's kind of not in
(14:51):
line with what you guys havebeen talking about.
That's when I'm like, okay,let's bring the attorneys into
the room so they can be aware ofwhat the negotiations were and
that you can get your advice inreal time, and I find that that
actually can save money.
Sometimes people get concernedbecause it's like, oh, we're
going to have to pay thisattorney now to be in the room
with us, but I think it actuallysaves money, because what would
(15:15):
take eight hours of mediationwithout an attorney?
In this situation you could doit in an afternoon and resolve
the whole case.
Mark Hill (15:27):
And yeah, and also not have to reschedule another
meeting Right After.
You know outside meetings haveoccurred with the attorneys.
Shawn Weber (15:36):
You can get your advice right there, yeah, and in
a way as a mediator, I will nottypically do a mediation where
only one person has an attorneypresent.
If one person is going to havean attorney present, then I need
the other person to also havean attorney present because
otherwise it's not a balancedenvironment.
The only time I kind of slippedfrom that is when I had one
(15:59):
case where in this particularcase, the husband was a very
strong-willed person, verystrong personality, and held his
own just fine, and that wasjust kind of a case-by-case kind
of thing.
And then I had another casewhere one of the parties
actually was an attorney and itwas just a totally different
experience for that personbecause they actually knew the
(16:20):
law, although I cautioned thatperson you know I've represented
certified family lawspecialists in family law cases
because they recognize thattheir emotions got in the way of
good representation and theyneeded to have an attorney who
was not them representing them.
So even in those situations,you know, you got to be careful.
Peter Roussos (16:40):
Something that I've heard the two of you say
often is that one of the reallyimportant foundational elements
of mediation is that this is theway that the parties retain the
power of their decision-making.
They're not seethingdecision-making to a court or to
a judge.
I am curious Does it happen youhave the experience of clients
(17:07):
and mediation insisting onsomething that you think is
really ill-advised?
It's understood between them,but really ill-advised?
Mark Hill (17:20):
Yes, what do you do in those?
Peter Roussos (17:21):
circumstances.
Mark Hill (17:23):
You basically?
Well, the classic one is onewants to keep the house and it's
not affordable, but they are solocked into it that you know
there's the only stable thingleft in their life.
Everything is falling apart.
If I can't have the house, theworld will end, and it's not
always the woman, it's sometimesthe man.
(17:44):
The reality is that all you cando is basically from my
position, if I'm mediating, isthat well, you could do this?
But I'm really worried aboutwhere you're going to be five
years down the road.
Till then, you know, when thekids go to college and then this
child support drops off and youare now alone in this big house
(18:06):
, still having to maintain it,your income will have dropped.
You know I can't see how thisis going to work well for you
financially.
That's the way I would couchthe conversation.
But I've had people come backand say I don't care.
That house is everything to meand I want it, and I always
wonder where they are five or 10years down the road.
Shawn Weber (18:29):
One of my colleagues was describing a case
that she was mediating wherethe wife was just giving up
spousal support.
She was entitled to a verylarge amount of spousal support
and she was just completelyweighing away.
But she's like I don't care, nospousal support, it's totally
fine.
And this mediator is veryconcerned about this, and during
(18:50):
a caucus session where she waslike one-on-one, she said what
are you doing here?
You need to talk to an attorneyabout this.
You need to understand that youhave the right to spousal
support.
And have you talked to anattorney?
And she said well, listen, yougot to understand.
I went away from this guy and Ialso know that my family is
(19:12):
very wealthy and I'm about to bea recipient of a large
inheritance and I'm going to befine and I just want rid of this
guy.
I want to buy my piece so Inever have to deal with him
again.
And if that means I don't getspousal support from him, that's
fine.
And so in that case, the personhad a really good reason for
that, why they wanted to dosomething really odd and off the
(19:33):
wall.
But what every mediator does ina circumstance like this is
okay.
Well, have you talked to anattorney about that.
You need to talk to an attorneyabout that.
I've had one case where well,not one, but this one is
sticking out in my mind inparticular, where I absolutely
insisted there be an attorneyadvising.
And this guy, he had been a badboy, there had been affairs and
(19:58):
he had done some things that heshouldn't have done, and so the
wife was going to stick it tohim.
And I kind of don't blame her.
He was actually.
He wasn't a jerk, you know, butyou know we're in California,
it's a no fault state, and hewas.
She dictated the terms of themarital settlement agreement.
It was like he was going togive up 100% of his retirement
(20:19):
to her and she was going tocontrol all of his money and
decide how much of it he'sallowed to have.
It was just so draconian.
And I said to him I said Ican't write this until you've
had an attorney review it.
You know you need to consultwith an attorney.
So he did talk to an attorneyand the attorney did the same
(20:40):
thing I did.
This is crazy and then wentreally over the, you know, spent
a lot of time explaining to himwhy and did a very beautiful.
It was like a five page CYAletter saying do not sign this.
And he's like I'm going to doit anyway.
And then I told him and theattorney you know I'm really
good at writing these agreementsI'm going to write an agreement
(21:00):
that's going to be enforceable,it's going to do what it says.
He's like I know I want to doit anyway, but at least I knew
he had an attorney review and Itake the position that people
are big boys and girls, you know, and as long as they have the
information, their consent isinformed, they are allowed to be
idiots.
Mark Hill (21:21):
Don't let's gloss over that.
That's the term that's socritical here Informed consent
you can consent to anything aslong as you have the information
in order to make that decision.
Shawn Weber (21:32):
Yeah, and if you want to still be a moron about
it, that's up to you, that'scompletely on you, absolutely.
But at least you knew.
You can't come back then andsay, oh well, I didn't realize,
like this poor guy with theinsurance policy, yeah, yeah.
And if he had known that he hada right, you know, I don't know
(21:53):
what the mediator told him inthis case because I wasn't the
mediator on it but if he hadknown that he needed to have a
termination date on that, hemight have made different
choices.
Mark Hill (22:06):
You would think that any rational person would make
different choices.
Shawn Weber (22:09):
Well, you know, and rational is the key there, mark
, because I'm sorry, when peopleare going through a divorce,
oftentimes they're not Exactly.
Peter Roussos (22:18):
Yeah, all the more reason to have another set
of eyes on this.
Mark Hill (22:25):
I actually can support you alone, whose
basically only interest islooking out for your interest.
Shawn Weber (22:34):
Yeah, somebody's got your back.
So then you know we probablyought to talk a little bit about
how do you, as the client, makesure that you're maintaining a
balance between making sure youhave a legal advocate but that
you're also kind of keeping inthe spirit of mediation and
cooperation and mutualsettlement.
How do you balance this withthe attorney that you select?
Mark Hill (22:58):
You keep going back to what you agreed at the start
of the mediation were your goalsand your aspirations for the
process, what you call the bigrocks when you do your mediation
Right, what we call the sort ofthe goals and aspirations,
which is basically I want tohave a relationship with my
(23:19):
spouse that benefits ourchildren.
I want to be financially secure.
I want to make sure we bothhave a comfortable living
situation.
Whatever you came up with, thatneeds to be not only integrated
into the mediation process butbe on the radar of your
consulting attorney so that theycan filter what you're doing
(23:42):
through those goals andaspirations.
Shawn Weber (23:46):
That's pretty good.
Peter Roussos (23:48):
In the collaborative work that we have
all done together.
The mission statement Exactlythat very first at time takeaway
meeting.
What's the mission statementfor this process and for these
clients?
Mark Hill (24:04):
Yeah, Reminding them of that.
Throughout the process theemotions come up.
Explain to me, Ms Client, howthis benefits the future
relationship with your husbandthat you want to have for your
children's benefit.
That usually stops them intheir tracks.
Shawn Weber (24:23):
And remembering that you're hiring an attorney
and that means the attorneyworks for you.
So if it is your high levelgoverning value or your mission
statement to be respectful andto seek cooperation and you
don't want to litigate, youinstruct your attorney that
that's what you're expecting.
And just because your attorneysays you have to do something
(24:47):
doesn't mean you will becausethey're not in charge of you.
You are in charge.
You just need to getinformation from the attorney.
And then, mark, we'veexperienced and I know you have
two cases where the case wouldnot have settled had it not been
(25:10):
the fact that we had good,mediation-friendly attorneys
involved.
Mark Hill (25:17):
Absolutely.
But there's a flip side to that.
When clients come to us whenthey already have an attorney in
place who is notmediation-friendly or, candidly,
not really qualified in familylaw yeah, just a terrible
attorney.
One of the things they do beyondpersonal injury and contracts
(25:38):
and whatever comes through thedoor.
Basically, that can be verychallenging because it puts us
in a situation where themediation can be really
undermined by the position of anexisting attorney who's telling
the client over in one ear allthe time.
I can do better for you.
(25:59):
You deserve this, your entitledto.
This is the thing we always get.
Shawn Weber (26:05):
One real thumb.
When you go to meet with anattorney and you feel you're
adrenaline going up instead ofdown, that attorney is
manipulating you.
That attorney is doing retainertalk and trying to get you hot
to trot so you're going to go towar.
Mark Hill (26:24):
A very famous person in business was a lady called
Pauline Tesla, who wrote thebook on collaborative law,
basically 30 years ago, pauline,in a very first job, tells the
story of a partner in thisfamily law firm who specialized
in jilted women.
Pauline and his comment waswhen they were complaining about
(26:49):
the affairs that their husbandwere having, was this?
Well then, we will rip out hislying heart.
So if you hear that kind ofcomment, it may not be an
appropriate attorney for amediation process.
Shawn Weber (27:07):
Yeah, I mean.
Look at their market.
If all their marketing isattorneys scowling at a camera
or they have imagery of combatin their marketing materials,
probably not a good mediationfriendly attorney.
If they're immediately talkingabout how unjustly you're being
(27:29):
treated and we need to file amotion at court tomorrow, that's
a person to be careful aboutyou know it's one thing for them
to say so go ahead, Mark.
Mark Hill (27:38):
Well, and you need to be careful, because mediation
has become such a big thing andis taking a larger share of the
market in the last 20 years atleast here in Southern
California.
A lot of attorneys realize theyhave to at least play lip
service to it on their website.
So they'll say that they domediation or that they're
(28:00):
mediation friendly, but myexperience is not.
Everyone is Well along thoselines, guys.
Peter Roussos (28:06):
What are the credentials and the training
that you think is essential forpeople to be not just qualified
mediators but mediation friendlyattorneys?
Shawn Weber (28:19):
In the family law context.
In the state of California atleast.
You want to make sure they're acertified specialist in family
law.
Okay, if you're not inCalifornia, you just want to
make sure that's all they do.
All day is family law.
They're not dabblers.
Sometimes you go to the phonebook.
Oh gosh, do people go to phonebooks anymore?
You?
go to their website and you seethis list.
And they'll do criminal law.
(28:41):
Trust in the states.
They'll do your will.
They'll do a bankruptcy,they'll be personal injury
claims, they'll do unlawfuldetainers and the very bottom
it'll say divorce.
That's one to avoid becausethey're dabbler and they're not
going to have the expertise ofsomeone who does only does
family law.
You want to make sure they'refamily law specialists.
(29:01):
And then I would ask do youguys offer, do you offer,
out-of-court settlement options?
What kind of out-of-courtsettlement options do you offer?
And sometimes they'll say, ohyeah, we're collaborative.
And then you're like well, areyou trained in collaborative
practice?
Mark Hill (29:18):
Right and have you done a 40-hour mediation
training?
Have you?
Shawn Weber (29:21):
been trained in mediation.
What knowledge do you have ofme?
How many cases do you do that?
Never go to court, but onlymediate.
Just ask them these questionsand sometimes they will kind of
maneuver around and say they'rereally collaborative, they don't
need a mediator, they negotiateall their cases.
Those are the ones to becareful about, because they
(29:44):
don't understand.
Mark Hill (29:44):
93% of my cases end up in settlement.
Shawn Weber (29:48):
Yeah, most litigated cases after a really
miserable three years will endup in a settlement.
Mark Hill (29:53):
Exactly.
Sometimes on the courtroomsteps on the back of a new,
usually when your 401k has beendrained to pay their fees.
Shawn Weber (30:02):
Just remember this if they have a giant billboard
on the interstate, somehowthey're paying for that giant
billboard on the interstate, andit's with their client's money.
It tells me they need the giantbillboard, because nobody's
referring to them either.
Mark Hill (30:20):
And what message are they sending on the giant
billboard?
Shawn Weber (30:24):
Oh yeah, if it's a gross message, believe it.
Also, maya Angelou said that ifsomeone shows you who they are,
believe them.
So somebody's going to go towar warfare analogies going to
go fight.
They're not going to help youfind peace.
Mark Hill (30:44):
But I want to return to a more positive approach.
I mean, we've talked a lotabout what not to do and the
wrong kind of attorneys.
There are excellent qualifiedattorneys out there who, for a
very reasonable cost, willprotect your interests.
Make sure you understand yourrights and your obligations
under what you're going to besigning, so there's no surprises
(31:07):
down the road, and it's unwisein most cases not to have that
available to you as you gothrough the process.
If it's available and on callthroughout the process, it's
better off than trying to findsomeone right at the end.
Oh, I have an agreement, now Ineed to go find an attorney.
(31:28):
And then the attorney looks atthe agreement and said well, I
wouldn't have done it that wayand why did you choose this?
And just having someone alongfor the ride is a real benefit,
in my opinion.
Shawn Weber (31:40):
I really appreciate it because it improves my work
as a mediator.
I've never had a situationwhere good attorneys looked at
MSA and they couldn't make it alittle better, Because they're
looking at it from a differentperspective than I am.
I'm looking at it from thepoint of view of the neutral.
They're looking at it from theperspective of their clients.
That's important.
You got to have all three toreally have an effective
(32:00):
agreement.
Peter Roussos (32:01):
Well, from a process standpoint, Sean, I'm
curious how that interaction orthe draft of a marital
settlement agreement that youarrive at that then goes to the
consulting attorneys.
Talk, if you would, about theback and forth.
It's to me it seems like ahouse bill and a Senate bill,
(32:25):
how those come together to besigned into law.
So how?
Mark Hill (32:29):
does that Hopefully not that, hopefully not that.
Nice try analogy counselor.
Shawn Weber (32:35):
Yeah, congress could certainly use the services
of a welfare agreement.
Number one, I think we'd get alot more done.
But number two, yeah, I meanthat does happen.
And this goes to the argumentof why it might be good
sometimes to have the attorneyin the room, because a lot of
times what happens is you havethis agreement that it's on the
(32:58):
razor's edge balance of interestbetween the parties and all the
attorney knows, when they seeit, what's on the four corners
of the document.
They don't know all themaneuverings and the minutiae
and the negotiation.
They're carefully wordedphrases that we're putting here
to get to an agreement and thenthey want to- and the
(33:18):
motivations from the clientstandpoint that you've got, yeah
, why are we?
Mark Hill (33:24):
doing it this way.
Shawn Weber (33:25):
The good attorney in that situation will just call
me on the phone hey, Sean, whydid you agree?
Why did they agree to this?
Yeah, and I can usually tellthem well, because you know that
was a carefully wordednegotiation, where she gave up
this in order for her to getmore of that, and he gave up
(33:45):
that to get something else overhere.
You know, there's this verythere's this balance here, and
when I explain to them thatthere is that balance and a lot
of times it'll make sense tothem it'll kind of back off.
A lot of times.
What I'll get, though, moreoften than not, is I'll get an
email or a letter that saysplease change all these
different things, and then I'llget an email and a letter from
(34:09):
the other attorney that saysplease change all these things.
And sometimes they don'treconcile, and sometimes the two
attorneys will actually talk toeach other and reconcile it,
but more often than not, whathappens is I need to do some
reconciliation and we might havea review session where we sit
together with the document.
Sometimes we sit together withthe document and with the
attorneys and reconcile the twodocuments with what I call a
(34:33):
review session, and usually thatgoes well.
I've only had a few cases whereit just absolutely blew up over
an attorney's suggestion.
Those have happened, but moreoften than not we can reconcile
it in a review session Verycomplex cases, Pete.
(34:54):
What I'll do is I'll write,I'll have a table, and one
column in the table will sayhusbands revisions.
Another column will say wife'srevisions.
Another column will say whatdid they agree to?
And sometimes it just requiresjust mapping it all out so
(35:15):
people can see it.
That's a good point I got tosay too.
We said some things aboutattorneys here, about the bad
apples, but most of theattorneys that do family law are
just really good people.
That's why they got into familylaw, Because they want to help
(35:37):
families and they're actuallyreally good people in this
industry.
My brother was talking abouthis own divorce and a good
relationship he had with hisattorney and how he just felt
like he was just a really goodperson.
Not only was he a competentattorney, but he was the kind of
guy he'd love to go have adrink with him, go play ball
(35:58):
with him or something, becausethis was just a steel or Yiddish
phrase.
This is a mensch and mostfamily law attorneys are in that
category.
There's probably 10% thataren't.
Mark Hill (36:16):
Yeah, and I agree with you that people come into
it with the approach of wantingto help people.
I also find that the brightestand the best move towards
non-court based solutions,because they feel they don't
help people so much as theycould do if they're going
(36:37):
through the court process.
Shawn Weber (36:39):
I can't tell you how many attorneys have come to
me personally and it said Ican't do this anymore.
What do I need to do to startmoving towards mediation,
Exactly Because I'm doing moreharm than good?
What can I do to help?
Mark Hill (36:50):
people do it.
I don't feel I'm helpingfamilies and that's why I came
into this.
That's a story I tell of a ladywho's since passed away.
Back years ago, when I wasdoing trainings in collaborative
, we used to send out flyers I'mprobably going back to the 90s
or early 2000s and she came tothe training and she got the
(37:15):
qualification and she came to meat the end of it and said you
saved my career.
I said what?
She said, I got my greatestvictory just before Christmas,
where we won everything I gotthe kids, I got the house, I got
the support and I was elated.
This was my greatest family lawvictory.
(37:37):
I looked across at the otherclient, his hands in face, tears
streaming down his face.
I look at my client thinkingshe'll be smiling.
No, tears streaming down herface too and I thought my God, I
haven't helped people.
She said about a week later,your flyer came and it gave me a
lifeline and that's all I wantto do now.
(37:59):
So think about that.
Shawn Weber (38:04):
Yeah.
So takeaways hire an attorneywhen you're mediating or when
you're anything you're doing ina divorce.
If you're doing it yourself, ifyou're mediating, if you're
using a collaborative model,have an attorney.
Make sure it's a qualifiedattorney who understands
settlement and understands whatand is willing to be subservient
(38:25):
to your goals, not the otherway around.
And don't think that you'rewasting money when you're paying
for good legal advice, becauseit will save you a lot in the
long run.
Mark Hill (38:40):
And if you give you a piece of mind that this is not
something that's going to raiseits ugly head years down the
road.
Shawn Weber (38:46):
Oh yeah, like my friend with the insurance thing,
yeah, so this is what we hopeis part one in a series.
So this is the.
We're talking about why it'simportant to have an attorney
during a mediation.
Next time we're going to talkabout why it would be important
to have a financial expertparticipate in your mediation
(39:07):
and why that can be helpful.
And then the following podcastwill be about why it's smart to
have mental health professionalsinvolved in your case.
And each of these folks bring somuch to the table and it kind
of goes a lot to what ourmission is for the three wise
men of divorce.
You know we're approachingdivorce from the three angles of
(39:27):
the legal, the financial andthe emotional, and we believe at
our core that when you have allthree aligned, that that is a
good outcome.
If you only have one of them,or two of them, and you're
missing a stool, a leg of thestool, then it's not as good of
an outcome as it could be.
So tune in next time, okay?
(39:51):
So, mark, if they wanted to getthat financial leg of the stool
, what should they do?
Mark Hill (39:59):
Look at my website which is Pacific Divorce
Management.
The website address ispacdivorcecom
P-A-C-D-I-V-O-R-C-E all one worddot com, and we have our
contact phone numbers, ourcontact sheet to directly get
through to us, and we'd bedelighted to speak with you.
Shawn Weber (40:21):
And Pete, if they needed to get the emotional
piece figured out, what wouldthey need to do with you?
Peter Roussos (40:28):
So I can go to my website, which is peterrusoscom
P-E-T-E-R-R-O-U-S-S-O-S dot comand can you email me from the
contact me page there or emailme directly at peterrusoscom.
Shawn Weber (40:45):
And for your legal needs in your divorce, and
especially if you're wanting tomediate your divorce or find a
no court settlement, you can goto WeberDisputeResolutioncom.
That's Weber, like the drilldispute, like we had a fight in
resolution, like we solved it,dot com, all one word and we'll
match you with a professionalthat can help you solve your
(41:07):
case.
Okay, guys, well, the audiencedid it again.
They spent a good amount oftime with us, but I hope it was
helpful.
Thanks for listening to anotherepisode of the Three Wisemen of
Divorce Money, psych and Law.
(41:27):
If you like what you heard, besure to subscribe, leave us a
review and share with others whomay be in a similar place.
Until next time, stay safe,healthy and focused on a
positive, bright future.
This podcast is forinformational purposes only.
Every family law case is unique, so no legal, financial or
(41:50):
mental health advice is intendedduring this podcast.
If you need help with yourspecific situation, feel free to
schedule a time to speak withone of us for a personal
consultation.
Thank you.
But anyway.
Well, why don't we get started?
Yeah, yeah.
Peter Roussos (00:03):
And I think we can.
Shawn Weber (00:05):
Maybe what we can do is we can introduce this as a
series Like.
This is part one.
We're going to talk about whyit's important to have attorneys
involved in your mediation, butstay tuned.
We're going to talk about whyit's important to have a
financial professional and whyit would be important to have a
mental health professionalinvolved in your doors case.
Yeah, sounds good.
Ok, do you guys know any goodlawyer jokes?
(00:26):
Welcome to the Three Wisemen ofDivorce Money, psych and Law
podcast.
Sit down with the Californiadivorce experts financial
divorce consultant Mark Hill,marriage and family therapist
Pete Russoes and attorney SeanWeber for a frank and casual
(00:49):
conversation about divorce,separation, co-parenting and the
difficult decisions real peoplelike you face during these
tough times.
We know that if you are lookingat divorce or separation, it
can be scary and overwhelming.
With combined experience ofover 60 years of divorce and
conflict management, we are herefor you and look forward to
(01:09):
helping by sharing our uniqueideas, thoughts and perspectives
on divorce, separation andco-parenting.
Mark Hill (01:18):
Well, the guy who passed away and you know, in his
mid-40s and went up to thepearly gates and was talking to
St Peter and St Peter looking inhis sheet and he goes, my Lord,
I was expecting a much olderman he goes.
Oh, you were just going by mybillable hours.
Shawn Weber (01:41):
Or the joke like why is it that the sharks don't
eat lawyers when they falloverboard?
Mark Hill (01:46):
They think er, you're there to help them find Correct
, yeah, so it's easier for himto get hang from her arms when
she's in a meeting with her guy.
He'll be fine if I ask thesameuriether, but I ask his
audience when you be here andyou're about to meet me, if you
may, absolutely Also for love atthe very beginning.
Peter Roussos (02:11):
So it's theiche of the matter that what do you
call a thousand lawyers chainedtogether at the bottom of the
ocean?
A Good start, a good start.
Shawn Weber (02:25):
It's like you heard .
You heard about the airplanethat crashed.
There was good news and badnews.
The good news it was all of thepassengers were lawyers.
That was good news, mm-hmm.
The bad news is one of thechairs was empty.
Peter Roussos (02:40):
I.
Don't often get this feeling,guys, but right now I have that
little discomfort that goes whenwe're we.
I think it's happened once ortwice Before, when he talked
about things that I thought move.
Is this appropriate?
Shawn Weber (02:58):
fool Macabre.
Mark Hill (03:00):
Yeah well, we like irreverent yeah.
Peter Roussos (03:02):
Yes, yes, yes.
Shawn Weber (03:04):
Well, well.
And the other thing is you know, we know about our audience.
Mm-hmm that there are a lot offolks in the audience that just
really have a poor opinion ofattorneys.
Yeah, and there's a reason forthat.
I think there's some attorneysthat are absolutely frankly
terrible, and they're usuallythe ones that have the billboard
on the highway.
Yeah you know, and, and theyrichly deserve their reputation,
(03:30):
but what happens is they ruinit for the rest of us well so.
Peter Roussos (03:36):
So what?
I'm curious, you know, Shawn,when you think about that kind
of attorney, you know what aresome of the stereotypes that
it's all about the bill of thelours that they're, you know,
just trying to be competitive asa way of combative, as a way of
earning additional fees right,I gotta suck you dry.
(03:57):
Mm-hmm, mm-hmm, it's, it's so.
What is it that that you thinkdistinguishes an exemplary
Attorney?
And let's, let's keep it in thecontext of a non adversarial
process that we're all committedto.
Shawn Weber (04:12):
Yeah, so I, you know we were talking about.
You know we all believe inmediation, right?
Yeah, yeah, where you can dothings outside of court and
divorce mediation is a great wayto do things.
I've always thought that theadversarial process that you
have when you go to litigationis destructive to families, so
it's why I stopped litigating.
But but I think there are somegood qualities to an attorney
(04:35):
participating in your mediationand I think a lot of times
people wrongly think oh, I'mgonna go to mediation, that
means I don't need to hire anattorney.
Yeah, and I think that's amistake.
I think Because the the role ofthe mediator, even if that
mediator is an attorney himselfor herself, it's important to
(04:56):
understand what that person'srole is.
So when I'm in a, when I'm amediator on a case, I have to be
neutral.
I always tell people I'mSwitzerland, but I.
That means that I am not in aposition where I can protect you
.
I Can't protect your interests,I can't advocate for you, you
(05:18):
know I I can't say, oh well,this deal isn't fair, so you
should not sign it, right.
Mark Hill (05:26):
I always say I you know, I cannot give you advice
right.
I give you information, but Icannot give you advice right
From your lawyer.
Shawn Weber (05:38):
I can tell you all day this is what the court would
do.
This is what the family codesays.
Yeah, this is what I thinkmight happen if you went to
court.
This is what a lot of otherpeople do, but that should or
should not piece that you'retalking about there, mark.
Yeah, that's for the lawyer toadvise you.
That's advice, and there's adistinction there and and.
(06:00):
And.
So you know I was mentioning toyou before we started recording
, pete, that about half mymediation clients are.
They have advising attorneysinvolved in their case about how
some don't, and I will tell youthat.
You know there are some caseswhere it's so simple that they
probably can get away with it,but most cases they definitely
(06:23):
benefit from having attorneyinvolved and I think the
outcomes tend to be moreequitable and more Fair even
though I sometimes say fair isthe F word.
They tend to be better outcomesfor the couple in terms of
having a mutually agreeable,respectful agreement.
Peter Roussos (06:42):
So if we bring it back to the cost, containment
or finances or or even the youknow stereotypical lawyer that's
just trying to run up the fees,what?
What do you notice about the?
The cost differential betweenmediation processes where they
(07:03):
have consulting attorneys andthose cases where they they
don't?
Shawn Weber (07:09):
I don't think it costs them anymore.
Okay, let me rephrase that.
I've seen mistakes made wherepeople agree to things that they
maybe shouldn't, that I'm notable to tell them.
You should not agree to that.
Mark Hill (07:23):
Like a life insurance policy that goes in perpetuity.
Shawn Weber (07:26):
Oh yeah, I had a guy that I talked to the other
day.
I did not mediate this case.
He mediated with somebody elseand he has a life insurance
policy that was required assecurity for future alimony.
He agreed to keep that lifeinsurance $500,000, but didn't
(07:49):
put a termination date on it.
So that agreement probably madetons of sense.
When he was 40, when he couldafford the life insurance policy
, he had a currently existinglife insurance policy.
But when he's getting older andthe term ran out on his 20-year
term and now he's 70 and hecan't afford the premiums that
(08:14):
would be required to pay forthis simple half-million-dollar
term policy.
He's had some health issues.
I mean this isn't going tohappen.
So he's in bad shape becausehe's required by his agreement
that he signed to have that lifeinsurance policy.
Now if he'd had that reviewedby an attorney before he signed
(08:37):
it and I checked with him he didnot If he'd had that thing
reviewed by an attorney beforehe signed it, the attorney would
have caught that and said, oh,you got to have a termination
date.
Good attorney would have.
Any reasonably good attorneywould have saw that would have
seen that.
But because he was thinking, hewas trying to be nice and he
(09:00):
was going to save money, didn'tdo that and then missed out.
The mediator didn't protect him.
I think the mediator probablydrafted a badly drafted
agreement.
That does happen.
Peter Roussos (09:11):
Well, sean, let me ask you, he's an attorney to
protect him.
Sean, let me ask you just interms of mediation process, I
give neutrality and not being anadvocate for either party.
If you're sitting with clientsand this question of insurance
(09:32):
comes up, can you be neutral butstill say, okay, you guys are
talking about doing this.
Let's talk about what happenswhen you are 65 years old, or 70
years old Like.
Is there a way that you canaddress those concerns, but do
it from that more neutralperspective?
Shawn Weber (09:50):
I do it by asking questions.
Go ahead, Mark.
Mark Hill (09:53):
Well, I also think that what's the insurance for?
It's usually to ensure support.
Support usually ends at somepoint when work terminates for
the payor.
So, building that into theconversation, and also when I'm
(10:14):
dealing with insurance, it'slike that's a declining
obligation.
So you get divorced at 40 andyou're going to work to 65.
You've got 25 years ofobligation.
That's a large number.
Halfway through that period, 12years to go, that's only half
the obligation you have, so youdon't have the need for as large
(10:35):
an insurance policy.
So often what I'll suggest isput two or three policies in
place with different durationsthat will drop off, so that
you're not being overcharged forit, frankly.
But again, this is the abilityto have people that do this all
the time at the table advisingyou.
(10:56):
Going back to one thing you saidbefore about lawyers, I wanted
to make a comment that there arelawyers and lawyers.
When I mediate a case, I alwaystell them I will require you to
get a lawyer because I can'tgive legal advice and I've got
to be very careful about theunauthorized practice of law.
(11:18):
I want you to have consultingattorneys in place or, at the
very least, a neutral partylawyer that will draw up the
agreement.
Well then I do all the CYAletters too if that's the case.
But then if I get a pushback,my response is wait a minute.
There's lawyers and lawyers.
(11:38):
The lawyers I'm going torecommend have two benefits to
them.
Number one they're mediationfriendly.
They're not going to blow thedeal up and try to get you to go
to court so they can earn moremoney.
Number two they know our workso they have a confidence about
the documents and the numbersthat we produced, so they don't
(12:01):
feel the obligation to go aheadand redo the work to cover their
themselves.
So I think it's not just thebenefit of having a lawyer, but
having the right lawyer.
Shawn Weber (12:14):
I think that's true .
Not every lawyer is createdequally, and so you want to
interview your lawyers, becausewhat you're looking for you're
not looking for someone to takea $20,000 retainer and take over
your case and become theattorney of record and go to
court for you.
That's not what you're lookingfor.
What you're looking for issomebody that be willing to take
a smaller retainer or bewilling to be paid hourly in
(12:36):
order to just give you theadvice you need to be able to
make the decisions duringmediation that you need to make,
and you know that's a veryimportant distinction.
I usually coach people on.
You know, when you're hiringthat attorney, this is what the
kind of thing you're looking for.
Make sure you explain to theattorney that you're in
mediation, that all you wantthem to do is provide advice and
(13:02):
that you will be making all thedecisions.
Thank you very much.
And if you get pushback fromthat attorney to like, no, I
can't let you do that.
If I'm representing you stufflike that I can't let my client
do things.
Those are the people you wantto avoid.
People that charge enormousretainers, that want to start
filing motions immediately.
(13:23):
Those are the people to avoid.
But the person is like oh yeah,so when you go to your
mediation, here's some tips onhow you might do in the
mediation regarding yourparticular issues, and then come
back to me and tell me how itgoes and I'll give you more
advice.
That's the kind of person youwant you know.
And there's also two ways thatattorneys tend to participate in
(13:47):
mediation.
One is they will be, as I justspoke of here, just a completely
advising attorney, completelyin the background.
Nobody ever really hears fromthat attorney, except for you
when you're meeting with yourattorney to get advice and maybe
to review the agreement.
And then there's the attorneythat will actually come to the
(14:08):
meetings with you and will helpwith the negotiation process and
actually represent you duringthe mediation sessions.
And that's a different kind oflevel of involvement.
Not every case requires that,but a lot of them will benefit
from that and I've seen it govery well.
(14:29):
And particularly when you havecases where the clients have a
bad dynamic with each other, orthe clients are struggling to
kind of understand what the lawis, and so they need to run off
to their attorney and they say,well, I can't agree to anything
until I talk to my attorney, andthen two weeks passes and they
come back and they have aproposal that's kind of not in
(14:51):
line with what you guys havebeen talking about.
That's when I'm like, okay,let's bring the attorneys into
the room so they can be aware ofwhat the negotiations were and
that you can get your advice inreal time, and I find that that
actually can save money.
Sometimes people get concernedbecause it's like, oh, we're
going to have to pay thisattorney now to be in the room
with us, but I think it actuallysaves money, because what would
(15:15):
take eight hours of mediationwithout an attorney?
In this situation you could doit in an afternoon and resolve
the whole case.
Mark Hill (15:27):
And yeah, and also not have to reschedule another
meeting Right After.
You know outside meetings haveoccurred with the attorneys.
Shawn Weber (15:36):
You can get your advice right there, yeah, and in
a way as a mediator, I will nottypically do a mediation where
only one person has an attorneypresent.
If one person is going to havean attorney present, then I need
the other person to also havean attorney present because
otherwise it's not a balancedenvironment.
The only time I kind of slippedfrom that is when I had one
(15:59):
case where in this particularcase, the husband was a very
strong-willed person, verystrong personality, and held his
own just fine, and that wasjust kind of a case-by-case kind
of thing.
And then I had another casewhere one of the parties
actually was an attorney and itwas just a totally different
experience for that personbecause they actually knew the
(16:20):
law, although I cautioned thatperson you know I've represented
certified family lawspecialists in family law cases
because they recognize thattheir emotions got in the way of
good representation and theyneeded to have an attorney who
was not them representing them.
So even in those situations,you know, you got to be careful.
Peter Roussos (16:40):
Something that I've heard the two of you say
often is that one of the reallyimportant foundational elements
of mediation is that this is theway that the parties retain the
power of their decision-making.
They're not seethingdecision-making to a court or to
a judge.
I am curious Does it happen youhave the experience of clients
(17:07):
and mediation insisting onsomething that you think is
really ill-advised?
It's understood between them,but really ill-advised?
Mark Hill (17:20):
Yes, what do you do in those?
Peter Roussos (17:21):
circumstances.
Mark Hill (17:23):
You basically?
Well, the classic one is onewants to keep the house and it's
not affordable, but they are solocked into it that you know
there's the only stable thingleft in their life.
Everything is falling apart.
If I can't have the house, theworld will end, and it's not
always the woman, it's sometimesthe man.
(17:44):
The reality is that all you cando is basically from my
position, if I'm mediating, isthat well, you could do this?
But I'm really worried aboutwhere you're going to be five
years down the road.
Till then, you know, when thekids go to college and then this
child support drops off and youare now alone in this big house
(18:06):
, still having to maintain it,your income will have dropped.
You know I can't see how thisis going to work well for you
financially.
That's the way I would couchthe conversation.
But I've had people come backand say I don't care.
That house is everything to meand I want it, and I always
wonder where they are five or 10years down the road.
Shawn Weber (18:29):
One of my colleagues was describing a case
that she was mediating wherethe wife was just giving up
spousal support.
She was entitled to a verylarge amount of spousal support
and she was just completelyweighing away.
But she's like I don't care, nospousal support, it's totally
fine.
And this mediator is veryconcerned about this, and during
(18:50):
a caucus session where she waslike one-on-one, she said what
are you doing here?
You need to talk to an attorneyabout this.
You need to understand that youhave the right to spousal
support.
And have you talked to anattorney?
And she said well, listen, yougot to understand.
I went away from this guy and Ialso know that my family is
(19:12):
very wealthy and I'm about to bea recipient of a large
inheritance and I'm going to befine and I just want rid of this
guy.
I want to buy my piece so Inever have to deal with him
again.
And if that means I don't getspousal support from him, that's
fine.
And so in that case, the personhad a really good reason for
that, why they wanted to dosomething really odd and off the
(19:33):
wall.
But what every mediator does ina circumstance like this is
okay.
Well, have you talked to anattorney about that.
You need to talk to an attorneyabout that.
I've had one case where well,not one, but this one is
sticking out in my mind inparticular, where I absolutely
insisted there be an attorneyadvising.
And this guy, he had been a badboy, there had been affairs and
(19:58):
he had done some things that heshouldn't have done, and so the
wife was going to stick it tohim.
And I kind of don't blame her.
He was actually.
He wasn't a jerk, you know, butyou know we're in California,
it's a no fault state, and hewas.
She dictated the terms of themarital settlement agreement.
It was like he was going togive up 100% of his retirement
(20:19):
to her and she was going tocontrol all of his money and
decide how much of it he'sallowed to have.
It was just so draconian.
And I said to him I said Ican't write this until you've
had an attorney review it.
You know you need to consultwith an attorney.
So he did talk to an attorneyand the attorney did the same
(20:40):
thing I did.
This is crazy and then wentreally over the, you know, spent
a lot of time explaining to himwhy and did a very beautiful.
It was like a five page CYAletter saying do not sign this.
And he's like I'm going to doit anyway.
And then I told him and theattorney you know I'm really
good at writing these agreementsI'm going to write an agreement
(21:00):
that's going to be enforceable,it's going to do what it says.
He's like I know I want to doit anyway, but at least I knew
he had an attorney review and Itake the position that people
are big boys and girls, you know, and as long as they have the
information, their consent isinformed, they are allowed to be
idiots.
Mark Hill (21:21):
Don't let's gloss over that.
That's the term that's socritical here Informed consent
you can consent to anything aslong as you have the information
in order to make that decision.
Shawn Weber (21:32):
Yeah, and if you want to still be a moron about
it, that's up to you, that'scompletely on you, absolutely.
But at least you knew.
You can't come back then andsay, oh well, I didn't realize,
like this poor guy with theinsurance policy, yeah, yeah.
And if he had known that he hada right, you know, I don't know
(21:53):
what the mediator told him inthis case because I wasn't the
mediator on it but if he hadknown that he needed to have a
termination date on that, hemight have made different
choices.
Mark Hill (22:06):
You would think that any rational person would make
different choices.
Shawn Weber (22:09):
Well, you know, and rational is the key there, mark
, because I'm sorry, when peopleare going through a divorce,
oftentimes they're not Exactly.
Peter Roussos (22:18):
Yeah, all the more reason to have another set
of eyes on this.
Mark Hill (22:25):
I actually can support you alone, whose
basically only interest islooking out for your interest.
Shawn Weber (22:34):
Yeah, somebody's got your back.
So then you know we probablyought to talk a little bit about
how do you, as the client, makesure that you're maintaining a
balance between making sure youhave a legal advocate but that
you're also kind of keeping inthe spirit of mediation and
cooperation and mutualsettlement.
How do you balance this withthe attorney that you select?
Mark Hill (22:58):
You keep going back to what you agreed at the start
of the mediation were your goalsand your aspirations for the
process, what you call the bigrocks when you do your mediation
Right, what we call the sort ofthe goals and aspirations,
which is basically I want tohave a relationship with my
(23:19):
spouse that benefits ourchildren.
I want to be financially secure.
I want to make sure we bothhave a comfortable living
situation.
Whatever you came up with, thatneeds to be not only integrated
into the mediation process butbe on the radar of your
consulting attorney so that theycan filter what you're doing
(23:42):
through those goals andaspirations.
Shawn Weber (23:46):
That's pretty good.
Peter Roussos (23:48):
In the collaborative work that we have
all done together.
The mission statement Exactlythat very first at time takeaway
meeting.
What's the mission statementfor this process and for these
clients?
Mark Hill (24:04):
Yeah, Reminding them of that.
Throughout the process theemotions come up.
Explain to me, Ms Client, howthis benefits the future
relationship with your husbandthat you want to have for your
children's benefit.
That usually stops them intheir tracks.
Shawn Weber (24:23):
And remembering that you're hiring an attorney
and that means the attorneyworks for you.
So if it is your high levelgoverning value or your mission
statement to be respectful andto seek cooperation and you
don't want to litigate, youinstruct your attorney that
that's what you're expecting.
And just because your attorneysays you have to do something
(24:47):
doesn't mean you will becausethey're not in charge of you.
You are in charge.
You just need to getinformation from the attorney.
And then, mark, we'veexperienced and I know you have
two cases where the case wouldnot have settled had it not been
(25:10):
the fact that we had good,mediation-friendly attorneys
involved.
Mark Hill (25:17):
Absolutely.
But there's a flip side to that.
When clients come to us whenthey already have an attorney in
place who is notmediation-friendly or, candidly,
not really qualified in familylaw yeah, just a terrible
attorney.
One of the things they do beyondpersonal injury and contracts
(25:38):
and whatever comes through thedoor.
Basically, that can be verychallenging because it puts us
in a situation where themediation can be really
undermined by the position of anexisting attorney who's telling
the client over in one ear allthe time.
I can do better for you.
(25:59):
You deserve this, your entitledto.
This is the thing we always get.
Shawn Weber (26:05):
One real thumb.
When you go to meet with anattorney and you feel you're
adrenaline going up instead ofdown, that attorney is
manipulating you.
That attorney is doing retainertalk and trying to get you hot
to trot so you're going to go towar.
Mark Hill (26:24):
A very famous person in business was a lady called
Pauline Tesla, who wrote thebook on collaborative law,
basically 30 years ago, pauline,in a very first job, tells the
story of a partner in thisfamily law firm who specialized
in jilted women.
Pauline and his comment waswhen they were complaining about
(26:49):
the affairs that their husbandwere having, was this?
Well then, we will rip out hislying heart.
So if you hear that kind ofcomment, it may not be an
appropriate attorney for amediation process.
Shawn Weber (27:07):
Yeah, I mean.
Look at their market.
If all their marketing isattorneys scowling at a camera
or they have imagery of combatin their marketing materials,
probably not a good mediationfriendly attorney.
If they're immediately talkingabout how unjustly you're being
(27:29):
treated and we need to file amotion at court tomorrow, that's
a person to be careful aboutyou know it's one thing for them
to say so go ahead, Mark.
Mark Hill (27:38):
Well, and you need to be careful, because mediation
has become such a big thing andis taking a larger share of the
market in the last 20 years atleast here in Southern
California.
A lot of attorneys realize theyhave to at least play lip
service to it on their website.
So they'll say that they domediation or that they're
(28:00):
mediation friendly, but myexperience is not.
Everyone is Well along thoselines, guys.
Peter Roussos (28:06):
What are the credentials and the training
that you think is essential forpeople to be not just qualified
mediators but mediation friendlyattorneys?
Shawn Weber (28:19):
In the family law context.
In the state of California atleast.
You want to make sure they're acertified specialist in family
law.
Okay, if you're not inCalifornia, you just want to
make sure that's all they do.
All day is family law.
They're not dabblers.
Sometimes you go to the phonebook.
Oh gosh, do people go to phonebooks anymore?
You?
go to their website and you seethis list.
And they'll do criminal law.
(28:41):
Trust in the states.
They'll do your will.
They'll do a bankruptcy,they'll be personal injury
claims, they'll do unlawfuldetainers and the very bottom
it'll say divorce.
That's one to avoid becausethey're dabbler and they're not
going to have the expertise ofsomeone who does only does
family law.
You want to make sure they'refamily law specialists.
(29:01):
And then I would ask do youguys offer, do you offer,
out-of-court settlement options?
What kind of out-of-courtsettlement options do you offer?
And sometimes they'll say, ohyeah, we're collaborative.
And then you're like well, areyou trained in collaborative
practice?
Mark Hill (29:18):
Right and have you done a 40-hour mediation
training?
Have you?
Shawn Weber (29:21):
been trained in mediation.
What knowledge do you have ofme?
How many cases do you do that?
Never go to court, but onlymediate.
Just ask them these questionsand sometimes they will kind of
maneuver around and say they'rereally collaborative, they don't
need a mediator, they negotiateall their cases.
Those are the ones to becareful about, because they
(29:44):
don't understand.
Mark Hill (29:44):
93% of my cases end up in settlement.
Shawn Weber (29:48):
Yeah, most litigated cases after a really
miserable three years will endup in a settlement.
Mark Hill (29:53):
Exactly.
Sometimes on the courtroomsteps on the back of a new,
usually when your 401k has beendrained to pay their fees.
Shawn Weber (30:02):
Just remember this if they have a giant billboard
on the interstate, somehowthey're paying for that giant
billboard on the interstate, andit's with their client's money.
It tells me they need the giantbillboard, because nobody's
referring to them either.
Mark Hill (30:20):
And what message are they sending on the giant
billboard?
Shawn Weber (30:24):
Oh yeah, if it's a gross message, believe it.
Also, maya Angelou said that ifsomeone shows you who they are,
believe them.
So somebody's going to go towar warfare analogies going to
go fight.
They're not going to help youfind peace.
Mark Hill (30:44):
But I want to return to a more positive approach.
I mean, we've talked a lotabout what not to do and the
wrong kind of attorneys.
There are excellent qualifiedattorneys out there who, for a
very reasonable cost, willprotect your interests.
Make sure you understand yourrights and your obligations
under what you're going to besigning, so there's no surprises
(31:07):
down the road, and it's unwisein most cases not to have that
available to you as you gothrough the process.
If it's available and on callthroughout the process, it's
better off than trying to findsomeone right at the end.
Oh, I have an agreement, now Ineed to go find an attorney.
(31:28):
And then the attorney looks atthe agreement and said well, I
wouldn't have done it that wayand why did you choose this?
And just having someone alongfor the ride is a real benefit,
in my opinion.
Shawn Weber (31:40):
I really appreciate it because it improves my work
as a mediator.
I've never had a situationwhere good attorneys looked at
MSA and they couldn't make it alittle better, Because they're
looking at it from a differentperspective than I am.
I'm looking at it from thepoint of view of the neutral.
They're looking at it from theperspective of their clients.
That's important.
You got to have all three toreally have an effective
(32:00):
agreement.
Peter Roussos (32:01):
Well, from a process standpoint, Sean, I'm
curious how that interaction orthe draft of a marital
settlement agreement that youarrive at that then goes to the
consulting attorneys.
Talk, if you would, about theback and forth.
It's to me it seems like ahouse bill and a Senate bill,
(32:25):
how those come together to besigned into law.
So how?
Mark Hill (32:29):
does that Hopefully not that, hopefully not that.
Nice try analogy counselor.
Shawn Weber (32:35):
Yeah, congress could certainly use the services
of a welfare agreement.
Number one, I think we'd get alot more done.
But number two, yeah, I meanthat does happen.
And this goes to the argumentof why it might be good
sometimes to have the attorneyin the room, because a lot of
times what happens is you havethis agreement that it's on the
(32:58):
razor's edge balance of interestbetween the parties and all the
attorney knows, when they seeit, what's on the four corners
of the document.
They don't know all themaneuverings and the minutiae
and the negotiation.
They're carefully wordedphrases that we're putting here
to get to an agreement and thenthey want to- and the
(33:18):
motivations from the clientstandpoint that you've got, yeah
, why are we?
Mark Hill (33:24):
doing it this way.
Shawn Weber (33:25):
The good attorney in that situation will just call
me on the phone hey, Sean, whydid you agree?
Why did they agree to this?
Yeah, and I can usually tellthem well, because you know that
was a carefully wordednegotiation, where she gave up
this in order for her to getmore of that, and he gave up
(33:45):
that to get something else overhere.
You know, there's this verythere's this balance here, and
when I explain to them thatthere is that balance and a lot
of times it'll make sense tothem it'll kind of back off.
A lot of times.
What I'll get, though, moreoften than not, is I'll get an
email or a letter that saysplease change all these
different things, and then I'llget an email and a letter from
(34:09):
the other attorney that saysplease change all these things.
And sometimes they don'treconcile, and sometimes the two
attorneys will actually talk toeach other and reconcile it,
but more often than not, whathappens is I need to do some
reconciliation and we might havea review session where we sit
together with the document.
Sometimes we sit together withthe document and with the
attorneys and reconcile the twodocuments with what I call a
(34:33):
review session, and usually thatgoes well.
I've only had a few cases whereit just absolutely blew up over
an attorney's suggestion.
Those have happened, but moreoften than not we can reconcile
it in a review session Verycomplex cases, Pete.
(34:54):
What I'll do is I'll write,I'll have a table, and one
column in the table will sayhusbands revisions.
Another column will say wife'srevisions.
Another column will say whatdid they agree to?
And sometimes it just requiresjust mapping it all out so
(35:15):
people can see it.
That's a good point I got tosay too.
We said some things aboutattorneys here, about the bad
apples, but most of theattorneys that do family law are
just really good people.
That's why they got into familylaw, Because they want to help
(35:37):
families and they're actuallyreally good people in this
industry.
My brother was talking abouthis own divorce and a good
relationship he had with hisattorney and how he just felt
like he was just a really goodperson.
Not only was he a competentattorney, but he was the kind of
guy he'd love to go have adrink with him, go play ball
(35:58):
with him or something, becausethis was just a steel or Yiddish
phrase.
This is a mensch and mostfamily law attorneys are in that
category.
There's probably 10% thataren't.
Mark Hill (36:16):
Yeah, and I agree with you that people come into
it with the approach of wantingto help people.
I also find that the brightestand the best move towards
non-court based solutions,because they feel they don't
help people so much as theycould do if they're going
(36:37):
through the court process.
Shawn Weber (36:39):
I can't tell you how many attorneys have come to
me personally and it said Ican't do this anymore.
What do I need to do to startmoving towards mediation,
Exactly Because I'm doing moreharm than good?
What can I do to help?
Mark Hill (36:50):
people do it.
I don't feel I'm helpingfamilies and that's why I came
into this.
That's a story I tell of a ladywho's since passed away.
Back years ago, when I wasdoing trainings in collaborative
, we used to send out flyers I'mprobably going back to the 90s
or early 2000s and she came tothe training and she got the
(37:15):
qualification and she came to meat the end of it and said you
saved my career.
I said what?
She said, I got my greatestvictory just before Christmas,
where we won everything I gotthe kids, I got the house, I got
the support and I was elated.
This was my greatest family lawvictory.
(37:37):
I looked across at the otherclient, his hands in face, tears
streaming down his face.
I look at my client thinkingshe'll be smiling.
No, tears streaming down herface too and I thought my God, I
haven't helped people.
She said about a week later,your flyer came and it gave me a
lifeline and that's all I wantto do now.
(37:59):
So think about that.
Shawn Weber (38:04):
Yeah.
So takeaways hire an attorneywhen you're mediating or when
you're anything you're doing ina divorce.
If you're doing it yourself, ifyou're mediating, if you're
using a collaborative model,have an attorney.
Make sure it's a qualifiedattorney who understands
settlement and understands whatand is willing to be subservient
(38:25):
to your goals, not the otherway around.
And don't think that you'rewasting money when you're paying
for good legal advice, becauseit will save you a lot in the
long run.
Mark Hill (38:40):
And if you give you a piece of mind that this is not
something that's going to raiseits ugly head years down the
road.
Shawn Weber (38:46):
Oh yeah, like my friend with the insurance thing,
yeah, so this is what we hopeis part one in a series.
So this is the.
We're talking about why it'simportant to have an attorney
during a mediation.
Next time we're going to talkabout why it would be important
to have a financial expertparticipate in your mediation
(39:07):
and why that can be helpful.
And then the following podcastwill be about why it's smart to
have mental health professionalsinvolved in your case.
And each of these folks bring somuch to the table and it kind
of goes a lot to what ourmission is for the three wise
men of divorce.
You know we're approachingdivorce from the three angles of
(39:27):
the legal, the financial andthe emotional, and we believe at
our core that when you have allthree aligned, that that is a
good outcome.
If you only have one of them,or two of them, and you're
missing a stool, a leg of thestool, then it's not as good of
an outcome as it could be.
So tune in next time, okay?
(39:51):
So, mark, if they wanted to getthat financial leg of the stool
, what should they do?
Mark Hill (39:59):
Look at my website which is Pacific Divorce
Management.
The website address ispacdivorcecom
P-A-C-D-I-V-O-R-C-E all one worddot com, and we have our
contact phone numbers, ourcontact sheet to directly get
through to us, and we'd bedelighted to speak with you.
Shawn Weber (40:21):
And Pete, if they needed to get the emotional
piece figured out, what wouldthey need to do with you?
Peter Roussos (40:28):
So I can go to my website, which is peterrusoscom
P-E-T-E-R-R-O-U-S-S-O-S dot comand can you email me from the
contact me page there or emailme directly at peterrusoscom.
Shawn Weber (40:45):
And for your legal needs in your divorce, and
especially if you're wanting tomediate your divorce or find a
no court settlement, you can goto WeberDisputeResolutioncom.
That's Weber, like the drilldispute, like we had a fight in
resolution, like we solved it,dot com, all one word and we'll
match you with a professionalthat can help you solve your
(41:07):
case.
Okay, guys, well, the audiencedid it again.
They spent a good amount oftime with us, but I hope it was
helpful.
Thanks for listening to anotherepisode of the Three Wisemen of
Divorce Money, psych and Law.
(41:27):
If you like what you heard, besure to subscribe, leave us a
review and share with others whomay be in a similar place.
Until next time, stay safe,healthy and focused on a
positive, bright future.
This podcast is forinformational purposes only.
Every family law case is unique, so no legal, financial or
(41:50):
mental health advice is intendedduring this podcast.
If you need help with yourspecific situation, feel free to
schedule a time to speak withone of us for a personal
consultation.
Thank you.
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