TRANSCRIPT 🔗
[0:01] Welcome to Moving Forward Divorce and Family Law with Andrew Wood.
[0:06] Welcome to Moving Forward Divorce and Family Law with Andrew Wood.
[0:11] Andrew H. Wood is a family and matrimonial attorney based in Albany serving clients throughout
[0:17] upstate New York. With nearly two decades of experience, he helps individuals and families navigate
[0:23] divorce and custody matters with a focus on clear communication, preparation and practical outcomes.
[0:30] I'm Lisa Mosbey -Host and today we're talking about mediation, litigation and how to determine which path makes the most sense in a given situation.
[0:39] Welcome, Andrew. Thanks for coming back and joining me again.
[0:42] Oh, thank you again for having me, Lisa. I appreciate it.
[0:44] You know, Andrew, how do you distinguish between situations that are a good fit for mediation and those that are not?
[0:52] The next one question. Actually, it's kind of beyond that to a degree. Usually at the initial consultation that I have with the client.
[1:00] There are many different, I shouldn't say many, but there are numerous different ways to approach a matrimonial case.
[1:08] And mediation is, I discuss all of those options with the clients, and mediation is a good option, but in certain circumstances.
[1:19] And that is generally when both spouses are willing to negotiate and compromise also are both spouses understanding and accepting of the fact that they are going to be divorced.
[1:34] There is not holding on to the past and, you know, trying to fight for something.
[1:39] If children involved, both parents want to have a good flow of communication back and forth between them, sometimes in litigation, if it gets contested and nasty, you know, the relationship between the parents break down, which causes tension, you know, certainly with the children and with the parents as, you know, hopefully co-parent with children.
[2:04] And, you know, it is a way to four clients to save time and money. Sometimes the mediation process can take time depending on the party schedules, but in the same schedule with the mediator.
[2:18] But if it is done effectively, it can save the clients time and money.
[2:24] And it would be nice if it could go smoothly all the time.
[2:27] And that's what, you know, a goal for all clients because at the end of the day, if you're going through a divorce, the sooner it can get over, the better, but without giving up more than is necessary.
[2:39] Or, you know, making sure that, you know, if there are children involved with the children are protected that you are planning for your future and figuring out how your life after the divorce is going to look.
[2:52] And it's not a good fit in circumstances where there's ever been issues of domestic violence, whether it's physical, emotional or otherwise, mediation is not a good fit.
[3:06] If one person, one party tries to coerce or manipulate the situation or try to get our upper hand on the other party.
[3:15] Mediation does not work. Again, if there's, if there's issues with substance abuse, significant issues with substance abuse, alcohol abuse, things of that nature, where that is a real concern.
[3:27] Mediation generally is not the best option. Same thing with mental illness on one side.
[3:36] And a big one that comes up, even if people agree to mediation and there aren't those issues, if one party fails to disclose financial information to the other.
[3:47] That is a situation where you really can't proceed with mediation because you don't know what's there in the quote unquote marital estate.
[3:56] Mediation in that circumstance doesn't work, but it is a good option and a viable option for couples that are seeking a divorce that want a non litigious and non hostile divorce proceeding and to go as smoothly as possible.
[4:19] Andrew, what tends to make mediation more effective, more likely to lead to a workable agreement once it's underway?
[4:26] In order from mediation to work effectively, the parties have to honestly disclose what they have in terms of the marital state, what the assets are, what the debts are, what their actual incomes are or could be or should be as would be imputed to them.
[4:48] But once that's clarified, it's also compromised. If you're going to mediation, drawing a line in the sand, it's not going to work because mediation is about compromise.
[4:59] It is figuring out a solution that works best for the parties that the parties can agree upon without a judge making the final decision for them.
[5:11] You know, the words that come to mind to me, Andrew, are confrontation versus cooperation.
[5:18] Do you want to cooperate with each other and work as a team to get to the end in the resolve or do you want to confront each other through that whole process? So here's what I'm going to ask.
[5:28] What kinds of situations tend to break down and move away from mediation into litigation?
[5:34] You know, in general, I would say, from my experience, it's when one person fails to disclose financial information. And I see this regularly with clients that are either in mediation, and I'm representing them through that process or they come to me.
[5:54] You know, during a mediation process because they can't move forward, it's because somebody is failing to disclose financial information. Maybe that party owns a business or, you know, has significant income from a different source so they do not want to disclose or other financial assets that they're trying to
[6:13] and I might have an idea about, but not be fully aware of and that wants to be broken out. So that's one time. So that comes down from the honesty approach.
[6:23] And also again, when people are unwilling to compromise and compromise, whether it's in litigation or in mediation, compromise is always a part of the process.
[6:37] I shouldn't say never, but really do people get everything that they want in a matrimonial proceeding is trying to figure out what how we can
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figure out a solution to your problem that allows you to move forward and make sure if there's children, the children are protected to make sure that the support is either being paid or being received.
[7:02] And if the person is receiving support, they're receiving, you know, enough to allow them to sustain themselves or them and the children and if it's the person paying, make sure they're not paying more than they can afford to pay to also sustain, you know, their lifestyle and moving forward.
[7:21] How do communication dynamics between spouses influence whether mediation is realistic option. The number one is respect and civility. And I think that, you know, plays out through all of our, you know, every aspect of our life, but particularly when going through a matrimonial action and when parties are trying to cooperate and resolve their matter through mediation respect and security is a big part of that.
[7:49] Also, the ability to stay on topic, rather than spiral into kind of the emotional issues that have, you know, emotional, whatever the issues may have been that caused the divorce to happen.
[8:05] You know, avoiding, you know, if somebody starts playing the blame game, then it can just go south real quick. Again, it's mediation, you're trying to resolve your matrimonial action. It's not, you know, a therapy session, so to speak.
[8:18] And therapy is very valid and, you know, recommend that to clients as well, but this isn't a time to, you know, play the blame game and for somebody to take apologies is trying to how can we move forward with the matrimonial action.
[8:32] Also, again, if there's, as I previously stated, if there's power imbalances, that's going to be an issue, you know, manipulation, coercion, that is something that, you know, could cause mediation to break down to again stands with not willing to compromise kind of drawing a line of the sand and saying it's, you know, it's my way or the highway, that's going to break down a mediation relatively quick.
[8:56] And, you know, again, lastly, it's, you know, the failure of anybody to share financial information, if financial information cannot be honestly shared, then it's going to be a problem and, you know, it should be ended.
[9:13] You know, by the party that feels as though they're not receiving the information they need.
[9:21] I think we have a clear understanding of whether mediation or core proceedings are, is a better option. I think we're clear on that, but let's jump into preparation.
[9:33] How does preparation influence, whether mediation is successful preparation, whether it's through mediation or through mitigation is necessary and it's obtaining your bank account statements, it's obtaining your retirement account statements,
[9:53] re, obtaining tax returns, pay stubs, credit card debt, any other debt statements that you may have.
[10:02] So that you can have, so that each party has a clear understanding of what is being divided and making sure that's on the table. So the preparation in mediation comes from both parties willingly cooperating to disclose what there is laid on the table.
[10:21] So that they can decide between themselves, again, without a judge deciding for them, how to do to break this divided up and how, you know, other payments may be made if necessary and how to move forward with their lives.
[10:36] So we've prepared we've moved into the process. How does that process change once a case moves from mediation to litigation.
[10:44] So with the mediation process, oftentimes what will happen is parties will go to a mediator and generally both, and I recommend both are also have their own separate attorneys, they can speak with and kind of run things by making sure that they're, you know, on the right track, even if they're giving up maybe more than they think they should, you know, is it within the realm of possibilities to, you know, maybe not win something.
[11:13] Not win something on their other side, but gain something else on, you know, from a different position.
[11:19] For example, maybe one party wants to stay in the marital residence and they'll figure out a way to, you know, transfer other assets that might be above and beyond what they have to transfer, but, you know, they're happy because they get to keep the marital home.
[11:34] The other party gets, you know, some additional assets in another fashion and move forward from there.
[11:41] But once it goes to litigation, you basically anything that has been done in mediation is really off the table and you start from scratch.
[11:50] You know, you go through the discovery process.
[11:54] You know, whether it's, you know, requests for discovery from opposing councils, subpoenas that are necessary, if there's necessary depositions, all those things are done.
[12:05] It's basically the mediation stops and that's really a rearview mirror and we're just looking at going forward.
[12:13] How to protect the clients rights.
[12:16] And Andrew, early on you mentioned that mediation can save a couple quite a bit of time and money.
[12:22] How does the time, the cost, the overall complexity typically change once litigation becomes necessary? How much more expensive is it?
[12:32] Every case is different.
[12:34] It's difficult to say you're going to have to pay, you know, whoever is going to you hire as a mediator, you're going to pay that mediator to resolve your case.
[12:45] Now, we're close on a lot of issues.
[12:49] Sometimes, you know, for example, if the parties have already talked, they understand that they're getting a divorce.
[12:54] Both parties are cooperating in that they have a general idea of how to do it, then, you know, mediation works or sometimes hiring each party, hiring an attorney, resolving a settlement agreement between them.
[13:10] The settlement agreement is going to have to be prepared anyway. So you're just, you're not paying the mediator, you're moving forward with just a settlement agreement.
But once it goes into litigation.
[13:22] The costs are hard to determine because each case is different.
[13:28] It's different if it's, you know, husband and wife or husband and husband wife and wife and each are W2 employees that have similar incomes, no children is different than if you have one spouse that works.
[13:40] That owns their own company and the other spouse is a stay-at-home parent and one spouse is hiding assets, the other spouse doesn't know the assets.
[13:48] You know, so it's really hard to gauge, but in general, litigation, when some case goes into litigation, it doesn't have to be overly scary or overly burdensome for a client.
[14:02] It's just, where are we, what can we agree with and what we have to look into more. So the costs generally are higher through the litigation process.
[14:15] But if you go through mediation, you're also paying a mediator in addition to, you know, the attorneys that I believe both clients should have in the matrimonial action.
[14:26] How does mediation still play a role in cases that become more contested?
[14:32] Yeah, that's great because I think it could be used more often in cases that become contested.
[14:40] A lot of, you know, you maybe have most of the issue, let's say we have the financial issues figured out, but we don't have custody figured out.
[14:50] You know, the parents just can't, you know, they're close on them, they're close on custody, but they can't figure it out.
[14:56] That is a potential way for mediation to help out.
[15:00] Also, another one that is always a sticking point, it shouldn't say always again, but it becomes a sticking point in a lot of matrimonial actions is personal property.
[15:12] I'm talking about how do we divide up the parent, if the parties have a home together and, you know, one party is moving out, you know, who gets the living room set, who gets the bedroom set, things of that nature, it's not, it's really not worth paying an attorney to negotiate that for you sometimes there are expensive pieces of furniture that were bought during the marriage.
[15:36] You know, we do have to fight that or did somebody's, you know, mother or father pay, you know, buy something for the household that they, this thing should be theirs.
[15:46] In those situations is worth, you know, you know, you may need attorneys to be involved, but a lot of times the parties are not able to figure out the division of personal property between themselves.
[15:57] And that's, mediation is an excellent source for those issues because it's not worth being an attorney to fight over a used culture, used that I understand and I agree with that we should be able to at least cooperate on those items.
[16:14] You know, Andrew, what tends to help set realistic expectations early on about whether a case is more likely to stay in mediation or move into litigation.
[16:25] I'm back back to it, but it really is the cooperation of the parties, the honesty of the parties and the parties willing us to compromise.
[16:35] If you have those in place, the mediation can be successful and oftentimes is successful.
[16:45] But without those or without one of those, mediation can fall apart and it's just a matter of at what point in time the mediation falls apart.
[16:55] So those are the biggest things I look at when meeting with the client and discussing if mediation is an option for them is are those three components sometimes there's other components as well, but those are the three main components.
[17:09] If they're present for the parties, then I think mediation is a good option and could be successful for them.
[17:19] Excellent. And we'll leave it there for today. Thank you so much for sharing your guidance through this process.
[17:23] Thank you, we sir.
[17:24] That's it for today's episode of moving forward divorce and family law with Andrew would if you're an upstate New York and trying to determine whether mediation or litigation makes the most sense for your situation.
[17:38] Thanks for listening and don't forget to like, leave a review, subscribe and come back next time. We'll see you there.