Fostering a Cooperative Divorce Experience Beyond the Courtroom | San Diego Mediator Scott Levin

Hi, I'm Kelly Myers with First Steps Divorce, and I am so excited to be here with Scott Levin, attorney and mediator. And what we want to do is talk about mediation today. And so, Scott, as a coach, when I'm working with people who are going through divorce, I always love it when I can work with them in the beginning and when I can really kind of share information with them about different ways to get divorced. And I always tell people that I'm really biased around the fact that I think people should start with mediation. And I—

Yeah. Yeah.

And the reason why is because the reality of it is there are very few legal issues that need to be decided in divorce. I mean, really, you've got legal paperwork that needs to be filed, but that really there aren't a lot of legal decisions. Right. There is, what are you going to do with the finances? What are you gonna do about support? And what are you gonna do about the kids if you've got kids? Well, you don't really need a, a lawyer for that. What you need is somebody who really understands how to facilitate the process of making these decisions, that understands all the decisions that need to be made, and that has spent time educating themselves on how to be a conflict resolution specialist And how to come up with creative ideas to solve problems.

And that's what it is. You need to be— you need to make— you need someone to help you understand the— to identify what the issues are, like you said, help educate you about what the ways that you could handle those issues and what they all mean, and speak, you know, English as opposed to legalese to you, and then help create those solutions, those paths forward. That's them. That's exactly what you need.

Yeah, absolutely. And the other thing that people don't really recognize about mediation— 2 things. One is if it doesn't work, which is very highly unlikely. I think, what was there, about an 80-85% success rate when it comes to mediation?

Yeah, it depends on the practice. Obviously, private mediation is, I think, a little higher. But yeah.

Yeah. So you've got the chance for a real high level of success if you get into mediation, particularly with a good mediator. But then you've got the ability, even if for some reason it doesn't work, you've gotten a lot of intel by sitting in that mediation room, right? You're, you're kind of understanding what your spouse may be wanting. You may get an idea of what their positions are, right? But you might even get an underlying understanding of what their real needs are, and that's going to help inform you if you ultimately had to go to litigation. Yeah.

So there's a ton of advantages of mediation. Everything that you just named is obviously one of them. The other thing is that when you— a lot of people will say, hey, I want to, I want to go through this quickly. You know, like, want to figure this out. Like, we don't have a, we don't have a lot of disagreements, but I'm going to hire a lawyer. He or she's going to hire a lawyer, and then we're going to let the lawyers, you know, kind of figure it out. And we're not fighting, so it'll be fine. And then the first thing you realize that happens from there is that now you're on 2 lawyers' timelines and you're on the court timeline. And you're— and because you're essentially litigating, but you're saying that we don't want to go full-blown, but now there's certain formalities that have to be followed. And now you hire 2 people to help you follow those formalities that are not used to, like, a shortened, you know, settlement discussion. They want to build up to the crescendo, which is the negotiation.

Yes.

And in mediation, we want to get to the negotiation. Like, let's figure this out and then handle the legal paperwork around it.

Right.

As opposed to building up for a year and a half to the getting all the stuff done first. And so you don't want to get on a lawyer's timeline if you guys have that situation. Like, yeah, we're going to be able to figure out we don't have a complicated situation, or we do. It doesn't really matter. But, you know, hiring the 2 attorneys, now you're locked into that timeline and there ain't no getting around that timeline. These people are beyond busy. Every minute of their day is calendared. They're not going to be responsive to communication. They're not going to be available for your phone calls, and you're not going to be able to set meetings in the next couple weeks. You know, you're now hunkered down. So hiring, going for mediation is a different experience. You're going to have someone that's, you know, if you hire the right person, that's going to be available, that's going to be able to get those meetings scheduled, and that's going to be able to work for both of you, you know, relatively quickly. I have a case right now where a woman A part of my— a vast majority of my work is a mediator, but sometimes I take on consulting attorney work. And she called me and she was really, really, you know, sad. And I felt really bad for her and I wanted to help her. And she said, well, you know, we've been married, you know, 10 years, but, you know, we got married later in life. And, you know, it's not going to be that complicated, but my husband hired a lawyer and they were going to send me a settlement proposal. But like, maybe you could— I could just have you hire you for a couple hours and we could You could help me. And so she asked them for the settlement proposal. The settlement proposal said, "I take everything, you take nothing. Deal." That's what the settlement proposal was. So then she forwarded it to me, and I and I responded, and I asked some questions because they were saying, you know, this is all separate properties. I said, "Hey, can you show us how that's separate?" Just the basics, not trying to fight, right? Just like I am. Coming at this from a problem-solving tone. You couldn't believe the response I got back. The response I got back from the other attorney was, go fuck yourself, and go fuck yourself, and go fuck yourself. Now, this attorney hired to help. This is the agreement they had. Let's figure this out.

Right.

This is the figure-out attorney on the other side. But they're not figuring it out. They're perpetuating conflict. They don't want to figure anything out. They don't know how. Because that's not their industry. Their industry is the court system.

Well, I think it's so interesting that you bring that up because I think it's looking at if you go to a surgeon to solve the problem, the surgeon is going to look at it under the lens of how do we cut you open? Like, how do we do surgery to fix this problem? If you go to a physical therapist to help you solve the problem, they're going to look at it from the perspective of, okay, what kind of exercises can we do? What kind of therapy can we do? Right. So same thing. With when you're talking about getting divorced. If you go to a litigator, their lens is litigation and all that that entails. If you go to a mediator, their lens is conflict resolution, problem solving, getting creative. I thought it was really interesting that you mentioned there you had a list of questions you wanted her to ask her attorney. I think that's such a key point of mediation and the role of a mediator. Is to get curious, ask questions, try to get underneath these really entrenched decisions or positions that some people get in and find out, well, why is it that you need that? And it's getting into the why, where you start to get creative and you can start to resolve problems.

Yeah. And that's why it's so important to start with mediation, because about a third of my cases come from litigation. So they're a year and a quarter in and nothing has really happened and they've spent money and they were those people that thought they could figure this out, but now they're stuck in the system of litigation.

Right.

And nothing moves fast in litigation. And it's oftentimes not the attorney's fault. I was a litigating attorney. I know it takes the court, it takes the other side, it takes your client, it takes the other attorney. There's lots of responsible people that in any of those parties that want to slow down this process or can't move faster than they can, you know, they're just going to move at their pace and that's the end of it. There's no pushing them faster.

Right.

So like, you're stuck in that system now. You know, those cases that exit litigation a year and a half in, you know, they almost all resolve, right, in a month or so because they're really motivated to like figure this out. Let's meet. Let's explore options. Let's identify the issues and let's create solutions and let's pick from some of them.

Well, I think the other thing for people to understand, 2 things. It's a tactic a lot of times to drag things out for one attorney or another. Right. So there's that. I will often encourage people, okay, so let's say there is that tactic and things aren't moving. You can always hop out of litigation and try mediation. So that's always an option. You're not stuck in one process or another. The other thing that is important for people to understand is you will be forced into a type of mediation in the litigation process.

Yeah.

Right. And I always say you're going to be forced there, and by then you will have spent a ton of money and a ton of emotional and mental resources. And now you're going to be mediating in a boxing ring. Why not get there first and see whether or not you can get creative and resolve your issues before you get to that boxing ring and you've done so much damage and everybody's beaten up and now nobody really wants to get creative. Everybody's either worn out Or too angry to work together.

So it's— And you know what I also say on the other side is that mediation isn't always perfect. We share a mutual client that we have not spoken at all about that I'm mediating for. And that's exactly what I relate to them is that, yes, it's not perfect. But the alternative is so damaging that, like, if you can succeed in mediation, the benefits are incredibly powerful for families, especially those with minor children and their financial futures of the 2 parents. There's so many huge benefits, whether you, you realize that those overwhelm the desire to kind of fight and perpetuate the conflict. You know, it's My advice is like, I understand your perspective. I know that this is what your kind of society teaches us. Like, this is where we get after it. But, but, you know, so while it's not perfect, because you're not get— you're not having that opportunity to lift up under the hood every little possible thing that you could ever find in the world. In general, this is a more healthy approach and certainly more financially beneficial to families.

Well, and I want to point out before we wrap up that, that you mentioned minor children, and we often forget about the adult children in this divorce process. Whether or not you have minor children or not, if you have children, they're your children forever, and that you are going to be co-parenting forever.

Mm-hmm.

And so the more that you can create some sort of workable relationship Oh, maybe one that's got some respect, hopefully. But, but some way that you can work together to continue to parent these adult children, grandchildren, you know, on down the line, is going to be better for your family. So again, I encourage all of you out there to reach out to Scott to talk more about mediation. Certainly, as a coach, you can reach out to me and talk about the options for mediation. But we strongly encourage you to, to look at that as, as your first option.

And we'll put all of our contact in the, in the description. And remind me, Kelly, I have a, uh, a case right now where one of the, uh, where they've been married about 4 decades and they have really adult children. And one of the adult children attended a therapy session with one of the parents where a lot, I guess, was kind of said. Um, and that is what we spent about 2 mediation appointments discussing because the hurt that came from that. The other parent thought the betrayal of the, of the divorce process, but by that other parent taking the adult child into their therapy session, that really impacted our work in the mediation, really diverted our efforts for, you know, a number of hours before we could get past that. So feelings of adult children, minor children, they're all children, right?

They absolutely are. And what I would say to whether you have adult children or minor children, ask yourself, what things would you— what personal things would you share to your children in your normal life? So why would you start to share personal information with them now that you're going through a divorce? Is that because your need to tell or your children's need to hear?

Hmm.

And that's the question you've got to ask yourself.

I love that. Let's leave it there.

Okay. All right. Thanks, Scott. It was great chatting with you.

Talk soon, guys. See you.