The Gray Divorce Podcast: Episode 58 The Mediation Experience with Attorney Amber Robinson
Transcript
Andrew Hatherley: Hello everyone and welcome to The Gray Divorce Podcast. How does mediation in divorce work? We've discussed mediation several times on the podcast, along with other alternative resolution techniques such as collaborative law and amicable divorce, but we've never actually gone into the nuts and bolts of how mediation works.
Andrew Hatherley: To help us understand how mediation works in divorce, we have with us family law attorney, Amber Robinson. Amber is the founder of the Robinson Law Group, a Las Vegas family law and divorce firm. She is a graduate of the Boyd School of Law at the University of Nevada, Las Vegas. Amber has extensive experience in all areas of Nevada family law, including divorce, child custody and support, and child relocation.
Andrew Hatherley: Importantly for our discussion today, Amber and I have worked on several mediation cases together. All of which, I'm happy to say, were resolved successfully in the sense that the two parties were able to come to a quick settlement and were able to avoid the financial and emotional stress of a protracted divorce.
Andrew Hatherley: Amber, welcome to the Gray Divorce Podcast.
Amber Robinson: Good morning, Andrew. Thank you so much for having me today.
Andrew Hatherley: And thank you very much on this Boxing Day, which for the non-British or Canadian listeners is the day after Christmas, which I think is a holiday for them, which I think is something that we should adopt here in the States. Anyway Amber, let's start out with a brief overview of mediation. And I'm curious how you define mediation in divorce.
Amber Robinson: Well, mediation is negotiation. We usually have some assets to split up. We have debts, we potentially have alimony, and then we potentially have attorney's fees.
Andrew Hatherley: Right. Mediation can involve two attorneys, each party being represented by an attorney, and we're going to get into that because that's how we've done our cases.
Andrew Hatherley: But I wanted to briefly cover, there are non-attorney mediators out there, right? And they can work with divorcing parties and then they might come to an attorney to drop the paperwork, right?
Amber Robinson: Right. So yes, there is specifically I can think of one off the top of my head right now that I refer to one non attorney mediator when it's relatively simple issues. If they're fairly simple issues, not like a lot of complex finances, I will usually send them to that person because she's quite competent.
Andrew Hatherley: Right. Now, I've heard the term court appointed mediators. What does that refer to?
Amber Robinson: A court appointed mediator, well, we have mandatory mediation in family court when we file a case through the family mediation center. So, I wouldn't necessarily call them court appointed but we do have the duty to go to the family mediation center when there are children involved.
Andrew Hatherley: What about, and this has happened to me a couple of times, where I've gotten a call, a cold call from somebody who might be looking for legal advice, but they don't have a lot of money and they want an attorney to both mediate and draw up the paperwork.
Andrew Hatherley: For the couple themselves, what do you do if somebody comes to you and says, me and my husband are getting divorced and we want to work with you. We don't want any other attorneys. Can that be a functional mediation?
Amber Robinson: I personally don't do that. I'll take on those cases where the parties have already worked out the terms themselves and I'll draw up the paperwork.
Andrew Hatherley: Right.
Amber Robinson: But I don't ever want to be in that spot where someone thought that they were getting advice when they really weren't.
Andrew Hatherley: Right, so if I understand it correctly, you can draw up paperwork for a couple who have settled their issues, maybe, as you mentioned with another mediator, even a non-attorney mediator. Let's say they've gone to this non attorney mediator, they come to an agreement, because their case is very simple, and then they come to you to draw up the paperwork. You can do that, but you can't be an advising attorney to two people.
All right, so we've worked together on a number of cases, and in these cases, each party has an attorney. I've never asked you this before, so this is going to be educational for me, too. What's going on in Amber Robinson's office when she calls me and says, Hey, me and Joe Smith attorney have a case. We want your help with what's going on there.
Amber Robinson: Well, in those cases, the clients usually have a lot of financial accounts and not just your standard bank accounts.
Amber Robinson: IRAs and 401ks and stocks. And I know enough to know that I don't know everything, and numbers are not my thing. And as we've discussed multiple times, this financial account is, even though it might look similar in number range to the other financial account, they're not the same because, maybe that other financial account is going to have some tax implications, et cetera.
Andrew Hatherley: God bless you, Amber. I wish other attorneys would acknowledge that that perhaps they're not the financial savants they think they are!
Andrew Hatherley: There's this other attorney involved. Is there ever an issue saying, hey, I know this guy, Andrew, he's a Certified Divorce Financial Analyst and he can help us. What's typically their response when you mention me to them.
Amber Robinson: They are usually open to it cause they, they can usually see the number of accounts and that kind of thing. And I'm thinking about this case that we most recently had. Like for example, in that case, there were some restricted
Andrew Hatherley: stock units, yes,
Amber Robinson: And I don't know anything about that, and I'm not about to tell a client how to divide that or what is considered not divisible at this point.
Andrew Hatherley: Right. Okay, so you call me and you say, hey, me and this other attorney, we each represent these parties we'd like you to be a financial neutral to help us help them resolve their divorce through mediation.
Andrew Hatherley: I should say, okay, at this point, I like to gather as much information as possible. as early as possible. I don't know about other attorney mediators out there, but certainly we're planning to meet on a day and it may be a day or maybe half a day and we want to resolve these financial issues that you've just mentioned that may not be particularly simple in some cases.
Andrew Hatherley: I'm going to want to get as much information as possible in advance and get to work a week or so before the date that we actually meet at your office. So I'll introduce myself to the other attorney and get the contact information for both the parties. And usually one of you or the other attorney will let me know this party's paying or whatever.
Andrew Hatherley: This is how you're going to get a check, but I will need to get paid. up front before the day we meet, because I'm going to be doing several hours of work on the case preparing the groundwork before we get together because I want to make the best use of that day. I'm wondering if you've worked with other mediator attorneys who gather financials beforehand, because I get the sense that a lot don't do that.
Amber Robinson: There are some private mediators I've met with. They generally wanted some information beforehand, or at least some briefs from us. You have wanted all the documents that you can get your hands on. Sometimes other attorneys have asked for just marital balance sheets that, that we've done ourselves and not necessarily asked us for the documents,
Andrew Hatherley: Well, That's my personality, but I also I find is a much better use of our time on the day of the mediation, which incidentally, in each of the several cases we've done together has been held at your office. Logistically, that's made sense. Is that ever an issue for the other attorney?
Amber Robinson: No, they've always been happy to come here. I'm happy to go to other offices as well. We've done it here and it's been nice because I have other additional offices here. So, when we meet all together, we can be in one spot. And if we need to meet separately, we can all be in different spots.
Andrew Hatherley: Yes. That's what's great about your offices. We have these rooms where parties can go off and have separate conversations, which I think has been an integral part of each of the of each of the mediations we've done. Okay. So now for listeners out there, we are. I've been given some information, some of the financial information.
Andrew Hatherley: I've put together a spreadsheet with software that I use. I've brought five copies, one for myself, one for each of the divorcing parties, one for each of the attorneys. And we have an introduction at your conference room. Just to paint a picture for our listeners, I typically sit at the head of the conference table because I'm the new party here and I'm introducing myself and conducting the beginning of the mediation.
Andrew Hatherley: And you're typically sitting on one side with your client and the other attorney on the other side with his client. And I'm curious. What you might have said to your clients, you don't have to divulge secrets, but how you prepare them for the mediation. Because when I get there, the first thing I want to do is commend them for coming and commend them for being part of this process.
Andrew Hatherley: Which, if successful, and fortunately we have been, is going to be far less expensive both emotionally and financially for them. And it's going to put them in control of the process rather than having a judge dictate the division of their assets. I also reiterate the terms of the mediation agreement that they've signed that my role is to be an educator and a facilitator, not a judge.
Andrew Hatherley: And this mediation is an opportunity for them to take the reins of their own settlement and put them in the driver's seat. What have your previous conversations with them been to prepare your client for mediation?
Amber Robinson: Well, it's certainly not anything that I want them to be scared of. I tell them it's going to be, it's serious in the sense that we're trying to resolve all issues, but I, I try to prepare them and say, it's not anything to be scared of. Andrew is very kind, very wise and it's going to be calm discussion and we're just going to look at the reality of the finances and I just tell them how it's going to go.
Amber Robinson: It's not going to be me running the show. It's not going to be the other attorney. We're going to let you do what you do and that we're just there to advise and to make sure that we're not skipping over any assets or any debts or that they're entering into anything that would be really unreasonable.
Andrew Hatherley: I'm so glad that you said calm, because I know when I come to a mediation, I will sometimes meditate myself prior to the mediation and try and get myself in the most zen, relaxed, calm state that I can be, and to open it up with a smiling, welcoming persona, as I just mentioned, commending the parties for their choice of this process.
Andrew Hatherley: Because I think by being calm and managing my emotions and focusing on the idea of solving their problem, that hopefully that mental state can transmit to the parties as well, and that, because lord knows, people come with emotions to mediations.
Andrew Hatherley: I think there, there's a certain attitude that that I try and bring it. And I noticed you bring as well. That we are calm, and we try to put the parties at ease. Divorce is likely the largest financial transaction in people's lives and it's done in a situation of stress and emotions, anger, resentment, bitterness, sadness, what have you.
Andrew Hatherley: If we, the more we can regulate those emotions, the better ultimately the process will go. So I appreciate you mentioning the calmness.
Amber Robinson: I was just thinking of that movie wedding crashers. Oh, yes. For that movie where it starts with the divorce mediation scene with Vince Vaughn. And it's really tense and emotional and I don't know, just a lot of chaos going on.
Amber Robinson: That's not what our mediations are.
Andrew Hatherley: No, not at all. Not at all. And I should watch that again. I haven't seen that movie in a long time. So this introduction is really the only part of the meeting where I'm doing most of the talking and just reiterating why we're here and how the meeting is likely to go.
Andrew Hatherley: And, mentioning that, okay, we're here we're getting introductions out of the way. And then the next step is to review the assets, the marital balance sheet that I've compiled based on the information the parties have provided. And then noting that we will have individual meetings where we can speak privately and the parties can confer with their attorneys individually.
Andrew Hatherley: And then we regroup to share and discuss proposals, air thoughts, and then in most cases I think we've had a second caucus, these individual breakouts, where we review the proposals made at the regroup meeting. And we can get into that in a second. And then hopefully we'll have a final meeting where we can iron out an agreement and ultimately lay the groundwork for drawing up the paperwork.
Andrew Hatherley: Specifically when we're reviewing assets, I think this is very important part of the meeting because we need to make sure we're on the same page. We need to make sure that both parties understand what assets are in play. And as you mentioned with respect to restricted stock units, vested, unvested, and the potential marital value of those. Understand that there, there may or may not be marital value components to some or all of those pensions if one party has a pension, there may be a discussion that this pension actually can be calculated as a present value because it is a future income stream.
Andrew Hatherley: So these sort of educational issues come up during the review of assets. What are your thoughts when we're going over this review process?
Amber Robinson: I like that portion of mediation because you have intelligent questions.
Amber Robinson: And honestly, we find some things that have been left out, not necessarily on your end, but, oh, we forgot about this car or these fancy items that we have in our house that we want to divide. And then we've also gone through, and we have changed some values on things.
Andrew Hatherley: And this is where some of the emotions may come out through the assets. “Well, that's mine and I'm keeping that” or there may be, you can get a start to get a feel for the individual's personalities and their emotions and how the mediation might go. With respect to things like retirement plans there are stereotypes about men and their retirement plans.
Andrew Hatherley: It's almost like the precious ring in Lord of the Rings. “You're not touching my retirement account.” And that's when attorneys can come in very handy, because, well, a judge might beg to differ.
Amber Robinson: Right.
Andrew Hatherley: I find often in the asset review stage, I'm saying, okay, well, we can talk about that, or we can talk about that right now.
Andrew Hatherley: We're just making sure we're on the same page and that we haven't ignored anything and that we understand how the taxation issues on some of the assets and how things work. I think the really productive work starts next, when we go to, individual meetings with one attorney and their party.
Maybe this is where the client will do most of the speaking, their attorney will have some words as well. And I'll listen and take down notes. What's going on
What's going on with you and your client at that time?
Amber Robinson: Honestly, there's probably some chit chat about what just happened in the room or, if we saw that the other side got tense about a certain subject, we're probably talking about that to a certain extent. But I've already talked to my client before mediation has started and I know where we're already going.
Amber Robinson: So honestly, we're probably just talking about whatever might be going on in their life or work life.
Andrew Hatherley: Shooting the breeze.
Amber Robinson: Yes, so we're just waiting.
Andrew Hatherley: So let's assume that there's been these individual caucuses where I've met with both parties and their attorneys, and then we regroup. And so we're all back in the conference room together and my process is to try and regain recapture the positivity of being here and having these discussions and that we may not agree on everything, but to focus on having spoken to both parties and say we've got some common ground here. There are areas where I see that we can move forward. And you've both both shown flexibility in certain areas. And that's good.
Andrew Hatherley: And then we might have proposals, at which point one party may say, “Well, I'm willing to pay spousal support, but I'm, I don't want to pay it that long.” And this is where things can sometimes get a little tense.
So this is where I back up a little bit and the proposals are made and we hear out each party. I'm curious. Let's say your client may have unrealistic expectations of receiving spousal support. And when I say unrealistic, I'm just going by what a judge may potentially award. Let's say it's a 10-year marriage and they want to receive 20 years’ worth of spousal support. How do you help in help educate your client in that point?
Amber Robinson: Well, I just tell them, well, one about our law and, Nevada law doesn't have any set magical formula on alimony number one, but I can tell them general rule of thumb.
Amber Robinson: And because I only do family law, I'm in front of these judges all the time. I can also speak to them about their specific judge.
Andrew Hatherley: Yes, that's important. Yes.
Amber Robinson: And okay, well, for the last 15 years, I have seen your judge do this typically in these types of scenarios. And I guess I have always approached clients that way, just really try to manage expectations: under promise and over deliver.
Andrew Hatherley: That's a very important point you made about when I said what a judge would say. Well, it depends on the judge, because some judges may be more positive towards awarding spousal support and others may not. And these are human beings. They may have had their own personal negative experiences or positive experiences one way or the other.
Andrew Hatherley: They may be going through life situations, which render their judgment less than optimal. Which is another reason why mediation, these alternate, alternative divorce resolution techniques are so important, is that you don't want to put your lives and all the details of your lives in the hand of one person after a trial, who's maybe looked at the details for a couple of hours, who's maybe had a bad day, who doesn't understand all that's been going on in your life to issue decisions.
Andrew Hatherley: And as I say at the beginning of the mediation when we do it, I'm not a judge. I'm neutral. The opportunity here is for me and your attorneys to help facilitate the two of you coming to an agreement so that you can avoid the cost and time and effort and stress of a trial and put yourself in the position where you have one person making these important financial decisions for the rest of your life.
Andrew Hatherley: I've found that in the mediations that I've done with you and other attorneys, that your role and the other attorneys role in bringing that point to bear on their clients has been very helpful, particularly in this regrouping session, where proposals are being presented and the attorneys are saying, that may not fly with this particular judge.
Amber Robinson: Right. And there’s something to be said for all of that. So with the judge, but there's a, I don't even know what to call it, but just a overall benefit to come to resolution. Not having to pay more attorney’s fees, because then you're going to be paying both of us to go to trial. You're potentially going to be paying the other side's attorney’s fees to go to trial.
Amber Robinson: And just that interim period, for some courts, it might be an additional 6-9 months that we're out. Just that waiting period, that stress, that anxiety. That waiting. There's a benefit to just getting it done and being the decider of your destiny.
Andrew Hatherley: For sure. And when we're doing the mediation, we've had this regroup and then we go back to the individual caucusing or breakouts.
Andrew Hatherley: And clients, you get the feeling that they understand, okay. Maybe the position that I've staked out is not going to fly, but I've seen some willingness on the part of my soon to be ex that they're willing to be accommodative here. This is where I found in the individual breakout sessions that really, it's a conversation.
Andrew Hatherley: I'm just watching the attorneys have a conversation with their clients. And this is where I see you guys doing the important advisory work. And. maybe offering some compromises so that when we get back for what is hopefully the final regroup that we're close. And once again, when we do get to that final regroup, that's typically where I'm feeling that we're almost there in sync. I know this isn't easy, it's three o'clock in the afternoon, we've been here for five hours or whatever. And we're close.
Andrew Hatherley: There’s been positive momentum, that we found some positive momentum in those more difficult cases to try and find those positive nuggets ultimately can bring us in that regroup to the point where this is where it's a conversation across the table between you and the other attorney and their clients.
Andrew Hatherley: And they're saying, what do you think? And what do you think? And that's where the magic happens. And ultimately the resolution of the magic anyway we can come to come to an agreement.
Amber Robinson: Yes. At that point now we're having a more serious discussion when we're meeting by ourselves.
Amber Robinson: And now I know, okay, where am I, where is my client that higher limit willing to give [00:28:00] and, where should we start at,
Andrew Hatherley: Right.
Amber Robinson: and I know that I can negotiate within that realm. And then I think, we would quickly know if there's going to be no agreement, but with you, I've never not had an agreement.
Amber Robinson: But I guess just in general, from a mediation standpoint, you can tell if the clients are so divergent that you're not going to come to an agreement and that's not a case I would suggest go to mediation when you can tell that they're so divergent. When I'm calling you, I know that we can come to a compromise.
Andrew Hatherley: Right. yes. What's going on in your second individual caucus, because you're no longer shooting the breeze. Right. Important issues have been brought up in that regroup. And this is where you're discussing with your client, are you flexible here?
Andrew Hatherley: What should we ask for here? And this comes out in final regroup. And fortunately, in the cases that we've worked on we've been able to hammer out agreement. What's the next step drawing up the paperwork and typically what do you do there?
Amber Robinson: So what I did at this last mediation with you and what I've done at mediations that like where I haven't had a mediator present is I like to record it. We’ve just had a long and exhausting day coming to resolution. I like to just notate what all the terms are and just identify everybody who is present and what those agreements that we've come to.
Amber Robinson: And then one of the attorneys is going to subsequently draft up the, all the paperwork for that.
Andrew Hatherley: How quickly does that process take after we've recorded that and you agreed to draw up the paperwork? How long before the documents are drawn up, they're presented to a judge, signed, and the divorce is done?
Amber Robinson: Sometimes we can get it done lickety split like within the next week or two. Sometimes it takes a little bit longer. And you know just you can sense to where the parties are at. Like if they're just so done and you can tell they don't want to wait anymore.
Amber Robinson: Like maybe I'll stay up really late. Over that next week and just get it done for them.
Andrew Hatherley: Right, right.
Amber Robinson: For ease of mind.
Andrew Hatherley: Yes, that's terrific. You mentioned a moment ago, when you call me with a case that you think these people are well suited for mediation. Not all your cases are mediated. I know that you do trials as well.
Andrew Hatherley: What gives you hope that mediation can be successful versus a case that you know that with these parties it's not going to work?
Amber Robinson: It's usually a mixture of the other party, coming to learn their personality as well as the attorney that they hire
Andrew Hatherley: Right?
Amber Robinson: I know all the attorneys and which ones are truly willing to sit down and, be totally fair.
Andrew Hatherley: Well, that's just it, when divorcing parties contact me before they've hired an attorney, I try to get a feel for how they're relating to their spouse, how complex the assets are, how contentious the divorce is.
Andrew Hatherley: And then I'll recommend some names to them. I said, well, in this case, you might want to contact this attorney. But I can see If you're dealing with a hardcore shark litigator, a mediation is probably not going to work.
Amber Robinson: Right.
Andrew Hatherley: So we've talked about this process being less costly. Let's get into some details.
Andrew Hatherley: I typically charge a flat fee of $3-4000, depending on the complexity of the case. How about you and what do you think about the other attorneys as well?
Amber Robinson: Honestly, a lot of other attorneys charge more than me. I try and do mediation towards more of the beginning phase of the case.
Amber Robinson: This is not usually something I'm trying to do after we've already had trial set, that kind of thing. So, for that portion of the case, I'm usually six, $7,000 range, and I've been flat fee. I'm going to be incorporating some changes this coming year. But usually with that fee, I am producing all the necessary documents under our rules.
Amber Robinson: We have Nevada Rules of Civil Procedure 16.2, where I need to give disclosures to the other side. I need to disclose all these accounts. And so I turn around and I give you that, that work that we've already done. So at that point, they're paying money. But they're not paying trial money at that point.
Andrew Hatherley: I think $10,000 is along the lines of what a mediation would cost a party. And honestly, given what I paid in my divorce it was, didn't even go to trial, but it was multiples of 10,000.
Amber Robinson: Right.
Andrew Hatherley: And if it had gone to trial, it probably would have been even more.
Andrew Hatherley: Divorce is going to cost you some money, but Lord, you don't want to do it yourself. Particularly if there's complex assets. I've done a separate podcast on the dangers of do it yourself divorce. If it's not done properly, you don't want to relitigate it five, six, seven years down the road when you've started a new life for yourself.
Amber Robinson: Exactly. But yes, the especially when you have complex assets and every divorce, not maybe not every divorce, but I would say the multitude of divorces, you have your emotion involved, you're upset, you're stressed, you're anxious, you're all these things and that clouds judgment.
Andrew Hatherley: It certainly does.
Andrew Hatherley: And, there are techniques. I do incorporate techniques when I'm dealing with people going through these emotions. And I mentioned the calmness and trying to convey that. There's a great book by a noted mediator by the name of Bill Eddy. It's called So What's Your Proposal?
Andrew Hatherley: And every time we do a mediation, I review that book and I look at the certain language that he recommends and he uses phrases, particularly when you've got people who are getting upset and argumentative. He suggests using phrases like, “Well, Ed what's your proposal? Or what would you suggest, Susan?”
Andrew Hatherley: Or, Sally, what are some options you'd like us to consider? I'm interested in hearing your thoughts on the subject. These sort of phrases, can often help bring those emotions down. So there's a bit of an art and a science to the process of mediation that helps in reducing those emotions, which we know are not what you want to bring to such an important financial transaction.
Amber Robinson: Right. And you've used those during our mediations. And then that is where having, I think two attorneys in the room and we're not contentious, but sometimes that client is still being like a little bit unreasonable to a certain extent, not bad, but a little bit unreasonable. Sometimes it helps them to hear it from my position too.
Amber Robinson: I'm sure their attorney has already told them the same thing and now they're hearing the same advice from the other attorney. “Well, I don't think that's the most reasonable request because of X,Y, Z.
Andrew Hatherley: Right. Having a settlement minded attorney such as yourself and the other attorneys who've been involved in the process can help contribute to bringing down the levels of emotion and leading us towards a settlement, which is what we really want.
Andrew Hatherley: Amber, we've gone over half an hour. Thank you very much. It's been very educational for me to know what's going on with you and the client and I'm sure for our listeners. You're licensed only in the state of Nevada, correct?
Amber Robinson: Correct.
Andrew Hatherley: So if any of our Nevada listeners are interested in contacting you and availing themselves of your services, how can they find you?
Amber Robinson: On socials, you can find me at Family Lawyer Las Vegas. My website is FamilyLawyerLasVegas.com and my office telephone is 702 527 2625.
Andrew Hatherley: Terrific. Amber, thank you very much and Happy New Year.
Amber Robinson: Thank you, Andrew. Happy New Year.
Resources
Amber’s website: www.familylawyerlasvegas.com
Robinson Law Group Telephone: 702-527-2625