15. Mediation Divorce & Paternity Q&A Episode Nov (BONUS)

Sydney Mitchell:

Hi. My name is Sydney Mitchell.

Matthew Brickman:

Hi, I’m Matthew Brickman, Florida Supreme court mediator. Welcome to the Mediate This! Podcast where we discuss everything mediation and conflict resolution.

Sydney Mitchell:
Today’s bonus episode, Matthew and I are going to be tackling some of the questions that you, our listeners have submitted over the course of the past couple of months here. So what are some of the advantages and disadvantages to having an attorney or not having an attorney? Because, you know, as we’ve talked about, you can just show up for mediation and sort it out without somebody, what are, what are some of the reasons that somebody would, or wouldn’t want to, um, engage an attorney outside of, you know, for some money.

Matthew Brickman:
All right, so I’ll tell you a couple different things I’ve had. Cause I’ve had it so many different ways. I’ve had people that said look…we know exactly what we want to do with our stuff, and we don’t even care what the law says. We know what we want, and we’re not spending money on attorneys to do this because we just want to do what we, don’t, what we want. We don’t want attorneys getting in the way and trying to screw up what we want. Right.

Sydney Mitchell:
And they’ve already come to some kind of agreement upon.

Matthew Brickman:
And so sometimes I get a call or an email says, Hey, Matthew, you know, talk to me about what you do as a mediator, because I can you put this in a legal format so we can get divorced and save a bunch of money. I’m like, absolutely. And so in mediation I’m like, okay, what do you want to do? Tell me what you have, tell me what you want to do. And there may be logistics of stuff. Like, you know, for example, they, they may say we, we agree to sell our house and we’re going to split the money. Okay. Well, there’s a lot more to sell in a house and just, we want to sell it. Okay. How’s it being listed? How, you know, who’s listing it. When is it being listed? You know, our, you know, there’s there’s so there’s logistics about that. That then I help them think about stuff that they didn’t even know about. Right.

Sydney Mitchell:
Exactly. I was going to say, and those are some of the things that they may, you know, if I were that person, I wouldn’t be aware of all of those aspects either, so

Matthew Brickman:
Correct. And you know, same thing, like they may say, Hey, we want 50, 50 timesharing with our kid. Okay, great. What does that look like? What are your days there days? What are you gonna do for Christmas? When you’re doing for spring break, what are you doing for Thanksgiving? Where are you picking up and dropping off how the two of you are going to communicate? They’re like, uh, we didn’t think about that, but what about notification for taking your kid out of state or out of country? Um, I don’t know. Well, what about renewing of a passport? Huh? Never thought about that either. So, you know, a lot of times they know conceptually and so I’m not there to give them legal advice to say, okay, here’s what the law says and here’s what you need to do with it. But I’m able to walk them through legally what is supposed to be there so that we can set up a preventative maintenance plan instead of setting up a parenting plan that then they’re constantly doing damage control because nobody helped them think of these things.

Sydney Mitchell:
Right. And, but of course, you know, any work that they do before coming to mediation is obviously helpful and makes the process more efficient

Matthew Brickman:
And, and cost them less money. Going back to what does it cost the more that you can deal with prior then? Absolutely. So let me tell you about another then mix. So sometimes I’ve done mediations where the parties have come without attorneys, but they have retained an attorney to consult for mediation purpose only. So for example, they may pay an attorney say $1,500. And that attorney is there to be able to be there for a, for a phone call away during the mediation process, if they needed legal advice. So say for example, that I’m doing a mediation and let’s just say that, that, that the parties want 50, 50 time sharing, or one of the parties wants 50, 50 times during the other party. He goes, no, not doing it well. So then the one party, I, I can’t tell them this is what you should or should not do.

Matthew Brickman:
But then one party may be able to pick up the phone and call their attorney and get legal advice about what does the law say? What, what, what does this particular judge that they’ve been assigned? What will they do? And so that’s one that, that that’s another way. So in that same vein, why are attorneys necessary? Cause so far it sounds like, well, they’re not even necessary, right? But there were times where they are absolutely necessary. Um, because you may have two people that cannot talk, cannot get along and will argue just for the sake of arguing. And they need that person who can tell them, look, I don’t have a legal argument for you. This is a no winning argument going, let’s go focus on what you could potentially win and trade it out. Right.

Sydney Mitchell:
You’re almost working with the attorneys to create understanding around what some of the possibilities are for the,

Matthew Brickman:
Yeah. I mean, I mean attorneys and mediators in judges, we’re all on the same side. If you really want to play sides, it’s almost like the court system and all of its officials, judges, guardian ad, litems, social workers, therapists, attorneys, mediators, we’re all on the same side. And on the other side is the people and, and we’re all here to help and we will lock arms and help when necessary. Now, again, not all the times is it necessary? Um, I’ve had mediations where the parties do not have attorneys. And I’ll tell you Sydney, if they did have attorneys, they would have settled. They didn’t settle because they w because they, they, they said they didn’t find a judge is going to have to tell me if they had an attorney that would say fine, but I don’t have a legal argument. And it’s going to cost $10,000 to get in front of a judge.

Matthew Brickman:
Well, maybe they would change their mind. Um, I’ve had mediations where parties have come without attorneys not settled, hired attorneys, and then settled. I’ve had mediations where they come with attorneys and the attorneys, um, were, you know, still could not help and settle it. And in the parties got rid of their attorneys and came back to mediation and settled. I’ve had mediations where attorneys were actually part of the problem. All they were, there was billing and stirring things up and making problems and not assisting, but that’s a rarity. I mean, I’ve worked with just over 600 attorneys. Most of them are phenomenal human beings, but I have had some where, you know, on a particular case or whatnot, where they’ve, they’re actually part of the problem, not part of the solution. Um, so, you know, there, there, there are times where they are necessary and they’re not, it really is up to the parties to figure out, um, if they can go through the different levels of negotiation, if there are, you know, hopefully they can negotiate on their own. If they can’t then find, come to me, let’s try it without attorneys, without taking on that, that retainer costs. If that doesn’t work fine, get your attorneys, you’re still coming back to mediation. And if that doesn’t work then fine, a judge will figure it out. But, uh, hopefully for the listeners that gives us a good, broad paint brush stroke of, okay, what’s the advantage or disadvantage. Should I have an attorney? Should I not have an attorney?

Sydney Mitchell:
So you would say it’s pretty much dependent upon how much of the negotiating you can do before hand

Matthew Brickman:
And how much they can do on their own or how much they think they can do with just a neutral third party. Um, you know, when, when, when people reach out to me and say, Hey, Matthew, you know, what’s this mediation process all about what is your role? Basically, they’re interviewing me really to see, you know, because again, so much of it, Sydney is personality. Like, you know, attorneys and clients are interview really they’re interviewing themselves are each other. And they don’t even realize that, you know, the client has seen if the attorney is knowledgeable and if their personalities align, but you know what the attorney’s interviewing the client to see if they’re even worth the money and the headache. Right. For me, they’re looking at going, okay, you’re not an attorney. You’re not going to give me advice, but do you even know what you’re doing? That you can help me navigate through this system?

Sydney Mitchell:
Well, I mean, in sorting through all the, I mean, this is, I mean, to let a mediator that you’ve never met before into all of these personal details of your life, helping you to manage all of these different things. It’s yeah. I absolutely understand why somebody would want to build that trust and get to know you completely, completely.

Matthew Brickman:
Yeah. And there’s, and, and yeah, I mean the levels of trust, um, I mean, really there’s, I think there’s only two other people that people probably, you know, just, just on a general level, without going into like a preacher or a therapist, right. The only other two people that I think people confide in other than a mediator and an attorney is their hairstylist and their bartender.

Sydney Mitchell:
That is true hairstylists. So, you know,

Matthew Brickman:
Exactly. So, you know, I mean, for me, it wasn’t much of a switch going from hair to mediation because I listened to everybody and gave them advice prior. And now I listen to everybody and I help resolve their conflict now. So, you know, I’m, I’m used to, I’m used to being a listener. So

Sydney Mitchell:
Let’s hit one more question before we wrap up today. Okay. We received a question that says, is it to my advantage to file a divorce petition before my spouse,

Matthew Brickman:
In Florida, again, we are a no fault state. And so it, there is no advantage or disadvantage to filing the petition before the spouse. Um, you know, so, you know, if it’s like, you know, if a husband and wife were like, well, should I file or should I file? Where should I file before you, there really is no big advantage unless, you know, like, you know, that somebody is about to drain a bank account or, you know, somebody is about to dissipate an asset. Um, but usually, you know, with those types of things, those are so on the download that you don’t really have a clue. Sometimes you do like, you know, two people can get an argument, be like, you know what, that’s it I’m done with this relationship. I’m taking everything and okay, maybe you do run. Maybe they were joking or not joking, but maybe they were kidding on the level.

Matthew Brickman:
They’re not really going to do that. You know, but the advantage really comes only in paternity actions, not in disillusions because in a paternity action, there is a legal presumption that the mother is the mother because she gave birth to the child. There’s no legal presumption that dad is the dad. And so prior to a father filing, he has no rights, no say no custody, no nothing. Whereas if he files then out, then that’s that line in the sand. And all of a sudden, mom can’t move away. Now, shared parenting comes up, you know, no longer is it sole parenting where mom had everything. And, and so, you know, there are a lot of advantages for filing the petition for paternity. But that particular question we had from that listener was the advantage for disillusion. Not really, but hopefully that will answer a question about paternity that either they had or somebody else has

Sydney Mitchell:
Absolutely well, uh, to our listeners, we are absolutely loving answering all these questions. I love the different topics that we’re going to hit. We’ve got a ton more questions to cover as we continue adding in these bonus episodes. So be sure to tune into those and continue sending in all of your questions.

Sydney Mitchell:
If you have a comment or question regarding anything that we discuss, email us at info@ichatmediation.com that’s info@ichatmediation.com and stay tuned to hear your shout out and have your question answered here on the show.