While couples commonly divorce through litigation, lawyers often advise their clients to consider mediation first. This method allows spouses to divorce outside the court by working with a mediator, who is a neutral third party, to finalize an agreement that both parties agree to. It is an effective, economical way to divorce. Oregon family lawyer and mediator Laura Schantz discusses the various aspects of divorce mediation and issues that may arise during the process.
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Divorce Magazine Podcast: Beaverton, Oregon Family Lawyer and Mediator on Divorce Mediation
Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Laura Schantz, Family Lawyer & Mediator
Laura Schantz is the founder of Schantz Law in Beaverton, Oregon. For more than 20 years, she has been helping her clients find creative solutions to complex financial matters involving asset division, dividing farm properties, spousal support, and child support. Laura also provides family law mediation to resolve sensitive issues regarding parenting time, child custody, premarital agreements, modifications of divorce agreements, and same sex marriage and divorce. To learn more about Laura and her law firm, visit www.oregondivorceattorney.com.
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What is divorce mediation and why should a divorcing couple consider it?
Laura Schantz: Divorce mediation is organized negotiation with a neutral third party, but there are a lot of really great reasons I think that clients should consider it. It is a very peaceful way to resolve a difficult time and the issues that are involved in divorce. It can be an economical way to do that as well because you’re not spending your money on preparing for trial. One of the greatest things about mediation is, often times, you have children together, so you’re going to be continuing forward to be parenting your children together. Mediation offers you more of a chance to keep your relationship intact instead of destroyed, which could happen with a very awful trial situation.
Is it possible to achieve resolution via mediation for a really high-conflict couple?
It absolutely is. In fact, I have been doing this for over 20 years, and I feel like I’m a pretty good judge of how easy or difficult a case may be. Sometimes, the cases that I think will be the easiest turn out to be very difficult. Oppositely, the ones I think are very high conflict resolve very simply. You never know. But the mediator really needs to take control of the situation and set some ground rules at the beginning, which is what I would do, about being respectful to each other and having a dignified process in the mediation and not letting people get into unproductive arguing back and forth.
Can you mediate a high-net-worth divorce? Are there any advantages of using mediation rather than litigation for high-asset cases?
I find that the high-asset couples typically use mediation almost more than anyone else. They really want to have private solutions to their divorces. They typically have very complicated assets, which they understand, perhaps, much more than your typical family law judge. A family law judge is going to have mostly low-income people coming through the courthouse and may not have the sophistication to really handle a high-net-worth case. I find these types of families do mediation quite a bit. They want to keep it out of the court’s hands and they want to keep it private. Typically, they have the ability to pay the support that’s necessary. They understand their assets, and they’re really good about being able to resolve their divorce case through mediation.
Does a couple have to resolve all of their divorce-related issues during mediation or can they choose to focus on only particular issues?
Couples may choose to focus on particular issues. In fact, I as a mediator like to focus on one issue at a time. There are major issues in divorce cases, one of them being parenting time and custody of the children. With couples that have children, often times, that’s a very big priority for mediation. Sometimes, all they mediate about is the parenting plan for the children. But you can do it piecemeal and get maybe the parenting plan figured out. Then the next step might be to work on the property division.
Typically, the hardest, most difficult part or the one that people are going to not agree on as easily is the amount of spousal support. That one we usually save until last to try to negotiate. Even if the parties aren’t able to resolve all of their issues, they can still narrow the issues and save money and cost at trial because they’ve settled the majority of the issues and maybe they just have a few things to take to the judge that they couldn’t agree on. Mediation can still be a big benefit, even if not all of the issues are resolved.
How many mediation sessions does it typically take to resolve all issues so that the couple can finalize their divorce agreement?
There is one type of mediation where the parties have had attorneys throughout the whole process and the attorneys have the case very well prepared, know exactly what the issues are, and are prepared with their proposed solutions. Those kind of mediation sessions where I would be a mediator, we would typically take an all-day marathon where we would spend the entire day resolving all the issues that we could in that day because everyone is very prepared and ready to resolve their whole case.
The other type of mediation that’s very common is when the parties don’t have attorneys sort of running the show. They may have an attorney in the background helping them, but they will be working primarily with the mediator. In that case, I would probably see them maybe three to four times total and I would be giving them homework in between to go find out some information that maybe we need to keep proceeding on with the mediation.
Then I would schedule these sessions probably every two to three weeks so that the parties would have time to gather the information that I requested, and just realizing that people have lives, they have things to do, and they have to be able to get their other parts of their lives done and have a little chance to maybe even think and decompress and come back to the table in a good position to make some progress.
Is there a difference between court-ordered divorce mediation and private divorce mediation?
In January in Oregon, we got a new rule in one of our counties, Multnomah County, where all the parties must use some sort of ADR, which stands for alternative dispute resolution, which equals mediation. I can see that becoming a state-wide thing that happens. Also, I’m licensed in the State of Washington. There are also mandatory settlement conferences in Washington. I think, more and more, the private mediation that we have may be something that courts are requiring. You get to choose who your mediator is going to be on your own in a private way. But courts are really, really pushing for families to use mediation before they come to trial.
What is the difference between divorce mediation and divorce arbitration?
The main difference is that in divorce mediation you get to choose the outcome. If you don’t agree that this is the solution that I want to agree to for my parenting plan or my spousal support, then you can leave. You can get up and leave, and you can say, “I don’t want to do this.” It’s completely confidential. Whereas divorce arbitration is a way that the court system has, which uses a low-cost way to resolve your case without a judge. It’s very similar to a trial, but it means that you can’t just say, “Oh, I don’t like this outcome,” and walk out. In fact, the arbitrator will make a final decision for you. That is the major difference between arbitration and mediation.
What is the difference between mediation and marriage counseling? Some people are confused about this when they come into a mediation session.
Typically, when parties are with me, they understand that they’re negotiating a settlement in their divorce matter. But with our new collaborative agenda these days, a lot of times we don’t like to file for divorce at first. We’d rather just sit down and have meetings and mediation before any paperwork is filed. That may be why some parties are confused about – since no divorce has been filed – whether this is similar to marriage counseling. Marriage counseling is typically with therapists or counselors at people’s churches – not attorneys. These therapists try to help couples that are doing their best to reconcile their marriage or make it better do that.
Whereas divorce mediation, even if the divorce hasn’t been filed, is something where both parties realize that they are headed to a divorce and they want to work out a settlement for all the issues that are contained in that divorce. When the mediation is successful and completed, the mediator, who is an attorney like I am, can actually file the paperwork and complete the divorce for them.
Have you ever had a couple pull the plug and decide to give their marriage a second shot after trying mediation with you?
Absolutely. I have had not a ton, but over the years, clients have wanted to reconcile. That’s something that I completely approve of and don’t want to put any roadblocks in the way of that. I would say I’ve probably had maybe two cases every year, both in my mediation practice or my work as an attorney, where the parties will decide to reconcile.
What can a divorcing couple do to prepare for their first mediation session?
One of the main things that I would say is that they should try to identify the major issues in dispute. Sometimes when couples come to me, they’ve already agreed on several things, but they know the things that they don’t agree on. I can also help them, in the first mediation session, identify major issues that maybe they overlooked or didn’t even think about. The other thing is to have as much information about the assets, income, and those types of things prior to mediation. If they haven’t exchanged the necessary information with each other, then one of my first homework assignments will probably be for them to go back and gather their bank account statements, retirement account statements, credit card debt statements, W2s, income tax returns – those types of things so that we have all the information we need to mediate their case.
But over and above that, I would say come in with an attitude that’s positive, open-minded, and is willing to make some compromises, and to really listen to what the needs are of the other party. That can be really difficult when you’re in a divorcing situation and you obviously have lost trust for the other person, but if you can empathize at all with what the other party needs, that’s the best way for couples divorcing to resolve their disputes.
Does a mediator typically charge as much as a lawyer does or does it depend on what their other skills are?
I would say that it’s very comparative that it’s definitely in the range. A mediator will charge an amount that’s in the range of an attorney. However, I do really caution people when they use divorce mediators with mental health backgrounds that aren’t attorneys because they don’t have the background that attorneys have in the legal issues that come up in divorce cases. They don’t know the laws, and they don’t know what judges do when you go to trial. There are a lot of complicated issues around various retirement assets such as government retirement plans or military retirement plans and things that you have to put in your documents right away, or else it’s really messed up. Even if someone isn’t going to use me as their mediator, I tell all my clients to use an attorney mediator because I think that gives you the best result.
Do you find that successful mediation is generally cheaper than litigation in terms of resolving the issues of divorce?
I would say mediation is always cheaper. It’s not cheap though. It does cost money because it takes some time and it needs to be thorough and complete. It needs to be done very carefully. When I talked about the all-day marathon that’s an all-day thing, that costs money. But when you’re talking about preparing for a trial, I’ve had trials that have gone over multiple days – three, four, five days – and preparation for those trials can take days and weeks.
That is so much more than a one-day mediation marathon. Obviously, you do have to do some preparation for mediation, so there is some expense involved, but it’s typically much less than a trial and you know what you’re going to get because you agreed to it. In a trial, you never can predict the outcome. You can kind of predict a range of what a judge might do, but you can never be sure what a judge is going to do at trial.
Will both spouses need to hire their own lawyers in addition to their mediator?
That’s something that I think is a good idea, but it’s not necessary. Sometimes, we’re able to resolve everything and neither party will hire an attorney of their own; they’ll just trust the process that we went through together and feel like they have all the information that they need. They know that I’m an attorney as well as a mediator, so all the documents will be drafted correctly and I’ve followed the law. However, I don’t discourage that. This is a very important thing for divorces, and there’s no harm. It’s a very good idea to have an attorney review what you’ve done or even talk you through the process about if you’re making good decisions, because an attorney is an advocate just for you. The attorney is only going to be looking at what’s in your best interest, whereas a mediator is in a neutral role and can kind of talk about different options but really needs to remain neutral and doesn’t advocate for either side.
As an attorney mediator, do you generally draft the couple’s divorce agreement?
Most of the time, yes, I’m able to do that for them. Since I was there in the mediation and helped with the agreement, and I’ve got kind of all the information, I’m the likeliest person to draft it. On occasion, one of the parties will have an attorney that wants to do the drafting, and that’s fine as well.
Do both parties need to be in the same room during a mediation session? If one spouse is out of the country, can a session be held virtually through an online video chat like Skype or Google Hangout?
Absolutely. I think that mediation is always better in person, and in fact, we’re starting to have a big movement about international mediators and having places where people can meet internationally when a party lives in a different country. But it’s totally possible with technology to not do it in person. I’ve had successful mediations that way. This is the wave of the future, and we’ve got great technology. I was Skyping with somebody last night who is in Bangkok, and it was morning in Bangkok. It’s really great. The technology we have is great. But if you can do it in person, that’s usually the best way.
If a couple is in the same city but really can’t stand to be in the same room, can they still mediate their divorce?
Yes. Our office has two different conference rooms and different offices. In those types of cases, I try to meet with them in the same room at least for part of the mediation, but then at other parts, I let them be in their own space. That way, we can do subtle diplomacy where I kind of go in from room to room asking questions and telling them what the other side is saying and trying to make some progress without the emotion that can get in the way when the parties are in the same room the whole time.