Latest / Family Law Talk / Caucus mediations in divorce and family law matters

Transcript

Caucus mediations in divorce and family law matters · Family Law Talk

• 0:01
  Speaker 1: Welcome to Family Law Talk. Familylaw Talk presented by Kirk
• 0:06
  Stangy of Stangy Law Firm PC. Stangy Law Firm is
• 0:10
  a multi state family law firm. Now here's your host,
• 0:15
  Kirk Stangy.
• 0:18
  Speaker 2: Welcome to Family Law Talk. We have an interesting topic today.
• 0:22
  The topic is caucus mediations in divorce and family law
• 0:25
  matters and this is based on an article on our blog,
• 0:28
  Familylawheadquarters dot com dated April twelfth, twenty twenty four, and
• 0:33
  the title of that article is what is the caucus
• 0:36
  approach to Mediation? So as a follow up to the
• 0:38
  episode today, go on over to FAMI Lawheadquarters dot com
• 0:42
  and read this article on the same topic. But let's
• 0:45
  go ahead and jump on into the topic at hand.
• 0:48
  The truth of the matter is, mediation is very popular
• 0:51
  in divorce and family law matters for folks looking to
• 0:54
  resolve their case outside of court. Mediation is often the
• 0:59
  first thing that most individuals think about is a possibility
• 1:03
  for trying to resolve their case. When talking about mediation,
• 1:07
  though there's differences, there's nuances in terms of how mediation
• 1:12
  can take place, and I think this is something lots
• 1:15
  of individuals miss or don't understand about mediation in terms
• 1:19
  of how it works, and so let's try to break
• 1:21
  some of this down. I mean, the first issue is
• 1:24
  court ordered mediation versus voluntary mediation. Some courts will order
• 1:29
  parties to do mediation, and we call that court ordered mediation.
• 1:33
  And obviously the laws in each state can vary in
• 1:36
  terms of what a judge is allowed to do or
• 1:38
  not do, but it's not uncommon in a lot of
• 1:40
  courts for the judge to order the parties going through
• 1:43
  a divorce or family law matter to go to mediation
• 1:46
  court ordered mediation, and sometimes they're required to do it
• 1:50
  for a certain length of time, maybe a couple hours
• 1:53
  or a few hours or something like that. Again, it's
• 1:55
  going to vary based on the case. The other time
• 2:00
  of mediation is where the parties they're not ordered to
• 2:02
  do it, they voluntarily agree to do it. So sometimes
• 2:06
  parties will go to mediation before ever filing the divorce
• 2:09
  or family law matter, and they'll agree to do it
• 2:11
  and they try to work things out. And sometimes parties
• 2:16
  might do it in the midst of litigation, so maybe
• 2:18
  the litigation was set off, but they agree to go
• 2:20
  to mediation, and this can often look quite different. You know,
• 2:24
  when parties want to be there, When parties desire to go,
• 2:28
  From my experience, the results oftentimes can be better because
• 2:34
  the parties want to be there. Court ordered mediation can
• 2:37
  certainly work and it's worth the effort. But from my experience,
• 2:40
  if the parties don't want to do it, they're doing
• 2:43
  it because they have to, then really the percentages of
• 2:47
  success can go down dramatically in terms of court ordered
• 2:51
  versus voluntary mediation. And certainly when it's court ordered mediation,
• 2:56
  the judge is often picking somebody. If on the other
• 3:00
  their hand, it's voluntary, than the parties agree on who
• 3:02
  the mediator is going to be, and maybe they've heard
• 3:05
  good things about a particular mediator or something like that,
• 3:08
  and that can certainly be a good thing in terms
• 3:10
  of trust. But you know, moving past that in terms
• 3:13
  of how most think mediation works. But most people, at
• 3:17
  least I've worked with as clients through the years, tend
• 3:20
  to think is they think that they and the other
• 3:22
  party are going to go to the mediation and they'll
• 3:26
  be in the room with the mediator talking about the
• 3:28
  case and the facts and potential settlement options, and like
• 3:31
  they'll be in a room and then the case will
• 3:34
  just be resolved. Lots of individuals actually get confused too,
• 3:37
  and think that a mediator is like a judge, like
• 3:40
  the mediator can actually divorce them, which of course isn't
• 3:43
  the case. And certainly sometimes people do mediation this way though,
• 3:47
  where they both go alone without their attorneys. They sit
• 3:50
  in the room with the mediator and they talk about
• 3:53
  settlement options and whatnot. And certainly in some cases parties
• 3:57
  might be able to resolve their divorce or FAMA law
• 3:59
  matter this way from my experience, so that often is
• 4:03
  not the case, and people say, well, why would that
• 4:07
  not be the case? And at least in terms of
• 4:10
  what I've seen through the years, the issue is that, look,
• 4:13
  if parties could just sit down and talk and figure
• 4:16
  this stuff out in terms of how their divorce was
• 4:18
  going to work, they might not even need a mediator
• 4:20
  to begin with. And the other thing I've learned through
• 4:24
  the years is this is that, look, if parties could
• 4:26
  easily compromise and work things out and meet in the
• 4:30
  middle on various issues, the truth is they might not
• 4:33
  be getting divorced in the first place. Oftentimes a divorce
• 4:36
  takes place because parties aren't capable of doing this. They
• 4:39
  are not able to do this. So from my vantage point,
• 4:44
  you know, going alone in with the mediator sometimes it works,
• 4:47
  but I'd say at least an equal amount of the
• 4:49
  time it doesn't. And I would say at times for me,
• 4:53
  you know, most of the time it doesn't work in
• 4:54
  terms of what I've seen with clients, and what it
• 4:57
  can lead to is if the two people are in
• 4:59
  the room with the mediator alone and their lawyers aren't there.
• 5:04
  My experience is that oftentimes arguing can begin, bicker and
• 5:08
  can begin, people can get mad at each other, and
• 5:10
  the situation can actually become more inflamed. And then what
• 5:14
  ends up happening is people storm out of mediation, maybe
• 5:17
  more upset than they originally were, and they don't even
• 5:20
  reach any kind of settlement, and in fact, it just
• 5:22
  sets off litigation. Okay, So then when you get to
• 5:25
  the topic at hand, you say, well, what does this
• 5:27
  caucus approach? What does this mean? How does this work?
• 5:31
  I think this concept is not widely known to most
• 5:35
  individuals going through a divorce or famine law matter, and
• 5:39
  I would bet most individuals haven't even heard about this before.
• 5:43
  You know, they don't even know it's a thing or
• 5:44
  it's an option. But in terms of doing mediations myself
• 5:49
  with clients through the years, in seeing how this oftentimes
• 5:53
  takes place from my personal experience, caucus approach to mediation
• 5:59
  is very common in terms of where I've practiced, and
• 6:03
  the way this works is this it's very different than
• 6:05
  what I described above and the caucus approach to mediation.
• 6:09
  You know, both parties go in different rooms. You know,
• 6:11
  sometimes it could be two different conference rooms or two
• 6:14
  different offices. But let's say you put husband in one
• 6:17
  room and wife in the other room, and you don't
• 6:19
  ever put them in the same room. And then oftentimes
• 6:22
  they bring their lawyers with them, so you know, husband
• 6:25
  will be in one room and wife will be in
• 6:26
  another room, and they each have their lawyer with them.
• 6:30
  And then what often happens is the mediator then caucuses
• 6:35
  back and forth between the rooms or travels back and
• 6:38
  forth between the rooms. So the mediator will go in
• 6:41
  the one room, let's say, with a husband and their lawyer,
• 6:44
  and we'll talk about settlement options and we'll get their
• 6:47
  perspective and then maybe give some tips, some suggestions, maybe
• 6:52
  some guidance, and then maybe you know, they depart and
• 6:55
  then walk in the room with wife and their attorney,
• 6:58
  and you know, then they do the same thing, you know,
• 7:01
  talk about settlement options, give some goals, some tips, express
• 7:05
  the other party's position, and so they travel back and
• 7:09
  forth between the rooms. The mediator and the two parties
• 7:12
  are never really in the same room, you know, sometimes
• 7:16
  in terms of how this can take place, in terms
• 7:18
  of least what I've seen, then maybe the attorneys get
• 7:22
  together in a different room with the mediator and neither
• 7:26
  of the parties are there. So maybe the attorneys go
• 7:28
  in a room and kind of trying to get down
• 7:29
  to brass tacks in terms of what settlement options might
• 7:33
  be out there and what's doable and what isn't doable, right,
• 7:36
  So I've seen a lot of that. In some cases,
• 7:39
  maybe there'll be a real quick meeting at the beginning
• 7:42
  with the mediators in there and both the parties are
• 7:45
  there with their lawyers, and then quickly after an intro
• 7:49
  and maybe an explanation in terms of how this is
• 7:51
  going to work, then the parties each go in their
• 7:53
  own room. But look in divorce and FEMA law matters
• 7:57
  where emotions can be high and feelings can already be
• 8:01
  escalated and people are worked up and maybe anxious and
• 8:06
  maybe even angry. You know, putting parties in the same
• 8:09
  room for mediation oftentimes is counterproductive. Again, sometimes it can work.
• 8:15
  Sometimes parties might not be very emotional. Maybe the parties
• 8:19
  have just grown apart, and there's not this anger or
• 8:22
  resentment of these kinds of feelings between the parties, and
• 8:24
  so it's easier to put them in the same room.
• 8:27
  But from my personal experience, at least in the divorce
• 8:30
  and family law realm, that is often all those feelings
• 8:34
  are often there, you know, those complexities are often they
• 8:37
  are also you know, in a lot of relationships, there
• 8:41
  can be one party who's oftentimes more dominant in terms
• 8:45
  of the decision making, and the other parties maybe had
• 8:47
  a history of being kind of barreled over, if you will,
• 8:51
  in these kinds of circumstances. Putting the parties in the
• 8:53
  same room could just further that too, where the one
• 8:55
  party just sort of rolls over the other party, and
• 8:58
  then the other party is not happy with the results
• 9:01
  or the settlement or whatnot, and so it's not good
• 9:03
  there as well. So, look, the caucus approach to mediation
• 9:07
  is the topic at hand. And again, the way this
• 9:10
  works is how I've described it, which is the parties
• 9:12
  are generally separated in their own rooms apart from each other,
• 9:17
  and then the mediator goes back and forth. Now you
• 9:19
  know another question individuals often have as well, how long
• 9:23
  can this take? Well, you know, the way I would
• 9:26
  explain this is it depends, and it's really based on
• 9:29
  how far apart the parties are, how many issues are
• 9:33
  in play. But caucus mediations in theory, could take days.
• 9:38
  It could take days of going back and forth with
• 9:42
  proposals and counter proposals and working through one issue and
• 9:45
  then another issue for parties to be able to reach
• 9:48
  a settlement. So it you know, don't necessarily expect that
• 9:51
  it'll be quick and easy. I mean maybe sometimes that
• 9:53
  can happen, but oftentimes not. Oftentimes this takes many hours
• 9:59
  or multiple days in order for an agreement to be
• 10:03
  reached through a caucus approach to mediation. All right, So
• 10:06
  again this is the topic at hand today. Definitely an
• 10:09
  interesting topic and I think one that not a lot
• 10:12
  of parties know a lot about. So I think it's
• 10:13
  important for parties who are thinking about mediation to contemplate
• 10:18
  does it make sense to be in the same room
• 10:20
  with the other party or is that going to be counterproductive?
• 10:23
  And if it's counterproductive, you know, maybe think about the
• 10:26
  caucus approach to mediation. You know. The other piece to
• 10:30
  this too is, you know, do you bring your attorney
• 10:32
  to the mediation or do you not. I've talked about
• 10:36
  this topic with lots of attorneys through the years. My
• 10:40
  general belief is bringing your attorney to mediation is a
• 10:42
  good thing. I mean, particularly if you don't have a
• 10:44
  lot of legal knowledge, Having your lawyer there is a
• 10:47
  good thing. I mean, you don't want to go to
• 10:49
  mediation and agree to something and then have regrets about it.
• 10:52
  So from my vantage point, mediations are best served by
• 10:55
  the attorney's being there. Although I will say with court
• 10:59
  ordered mediation and my experiences, oftentimes the attorneys don't go
• 11:04
  you know, the parties go along just with the mediator
• 11:06
  and the attorneys aren't there. Again, maybe lawyers have seen
• 11:10
  this differently than I have. But from my vantage point,
• 11:13
  off a settlement's to be had, having the lawyers there
• 11:15
  is definitely a good thing and can help ensure the
• 11:19
  parties questions are answered and if there's a legal issue,
• 11:22
  the lawyers can give legal advice on the settlement terms
• 11:25
  that are being thrown out there. And so I think
• 11:29
  bringing the lawyers is generally a good thing, but like
• 11:31
  I said, with court ordered mediation, oftentimes it doesn't happen.
• 11:34
  All right, Well, that's the topic today again is a
• 11:36
  follow up to the episode today. Going over to Familawheadquarters
• 11:40
  dot com, read the article titled what is the Caucus
• 11:43
  Approach to Mediation? It will give you more information on
• 11:46
  this topic. But thanks for tuning in. Stay tuned to
• 11:49
  our next episode on Family Law Talk coming up. Thank
• 11:51
  you very much.
• 11:53
  Speaker 1: Thank you for listening to Family Law Talk with Kirk Stangy.
• 11:57
  Visit Stangy Lawfirm dot com for more about today's topic
• 12:01
  or to put Stangy Law Firm to work for your
• 12:03
  family today. The choice of a lawyer is an important
• 12:06
  decision and should not be based solely on advertisements. Either
• 12:09
  the Supreme Court of Missouri or Illinois reviews or approves
• 12:12
  certifying organizations or specialist designations. The information you obtained in
• 12:16
  this podcast is not, nor is it intended to be
• 12:19
  legal advice. You should consult an attorney for advice regarding
• 12:22
  your individual situation. We invite you to contact us and
• 12:25
  welcome your calls, letters, and electronic mail. Contacting us does
• 12:29
  not create an attorney client relationship. Please do not send
• 12:32
  any confidential information to us until such time as an
• 12:35
  attorney client relationship has been established. As the results afford
• 12:39
  no guarantee of future results. In every case is different
• 12:41
  and must be judged on its own merits. Kirk Stangy
• 12:44
  is responsible for the Content Headquarters Office one twenty South
• 12:47
  Central Avenue, Swite four fifty, Clayton, Missouri, sixty thirty one
• 12:50
  oh five. Kirk Stangy is licensed in Missouri, Illinois, and
• 12:54
  Kansas