FULL TRANSCRIPT – Season 2, Episode 66

Welcome to another episode of the exEXPERTS’ Divorce etc… podcast, where we give you all kinds of information and tips on everything divorce. Why? We’ve lived it, so we get it. We’re Jessica and T.H. And keep in mind you can get exEXPERTS in your inbox by signing up for our newsletter. Get the latest news and find out all about our events before anyone else, plus, access to special discounts and prices. Head to exEXPERTS.com to subscribe.

Jessica: And today, we’re so excited to welcome Gabriella Formosa, a divorce lawyer, and mediator at Greenblatt Law in New York City. She’s here to give us a rundown on mediation and how to know if it’s really right for you. Great to have you here, Gabriella.

Gabriella: Hi, everyone, great to be here.

Jessica: So let’s just start out with a basic, because maybe there are a lot of people out there who aren’t quite sure. Can you briefly define what mediation actually is? Because it might not be exactly what some people think it is.

Gabriella: Right. So the standard definition of mediation, or the ones that I like to tell my clients, is it’s a neutral third party that is hired by both participants to help you reach an agreement. And that’s really it. That person doesn’t represent you, they don’t represent your spouse, and they’re not there to be the judge or the jury. They’re just there to help facilitate a conversation and help you to come to an agreement.

Jessica: You had said there are actually technically different kinds of mediation? Tell us a little bit about that.

Gabriella: Right. So it’s more that there are different styles of mediation, and people are trained differently and practice differently. One type of mediation, if you’ve seen on TV maybe, or when businesses are negotiating, they might have a mediator who talks to one in one room, and then shuttles to the other room and talks to the other, or they might meet at first and exchange proposals and then do breakout rooms. So that’s one style. But my personal style, the way that I was trained as it’s called the Conflict and Understanding Model, which is really where you – “fancy words” – you sit in the room with your spouse. And so when I practice personally, as a mediator, I have both clients in the room really at all times, unless there are really, really extenuating circumstances. But we, the three of us, sit together through the conflict, through the arguments. That’s natural. And so that’s the way that I practice for a variety of reasons. But those are really the two main schools of thought.

T.H.: So is it common, or is it 50% of the time and 50 not that clients have representation with them when they’re going to a mediator like yourself? Or do they come without representation?

Gabriella: It depends. I would say more people tend to not have lawyers, at least with them in the room. We, as a mediator, I always recommend that my clients have someone – we call it a review attorney, but someone who reviews the agreement afterward. Ideally, that person is more than just a review attorney who steps in at the end. Ideally, they’re also a consulting attorney. Because even though I’m a divorce attorney, even though I know the law like I said before, I don’t represent either person. So I can provide the base point of this is what the law would probably give you, but it’s always a good idea to gut-check that and talk to your attorney. Because sometimes you need someone to say, look, I know that you want to get your divorce over with really quickly, but this is a really bad deal for you or something like that. I can’t do that as a mediator, even if I think that someone’s agreeing to a really bad deal. Again, that’s just not my place. At that point, I would say, I really think you should hire a consulting attorney. I really think you should hire a consulting attorney. So if you’re hearing that from your mediator, you should probably hire a consulting attorney.

Jessica: When T.H. and I were talking about this earlier, she brought up such a good point, and you’re saying it right now, a mediator is someone who’s hired by both parties to help them work it out. But it’s like if you’re going through an acrimonious or angry or vindictive break up now with someone, literally back up and tell us how is someone going to agree on that very first basic step of agreeing who’s going to be the right mediator for them?

T.H.: Right.

Gabriella: Yeah, that’s a good question. I mean, it’s surprising that’s something that people end up agreeing on. They, I guess, both talked to–I always try to talk to the people together. I don’t know, it doesn’t seem to be–I guess maybe by the time they’ve gotten to me, they’ve already had the argument over who’s going to be the mediator and who’s not. I know people do argue, and then sometimes they’ll each get a lawyer, and that those lawyers will work together to choose someone. Maybe that helps the process a little bit if you’re in this process and you already do have attorneys, you can ask those two attorneys for recommendations. The matrimonial world is small. They can at least come together and agree on a few names. But it also sounds kitschy, but sometimes in mediation, I try to remind people about things they agree on. And that’s one of them, right? Like, you both agreed on me. You both agreed to come here. You both agreed to sign up for this process. We’re already on the right path. It sounds “therapisty”, but it’s helpful to people from a psychological standpoint. And it’s true.  

T.H.: For me, for us, I think we’d been to our second judge. I think the judge told us to go figure it out. My lawyer recommended a retired judge who was a mediator. I think we both felt, well, I don’t know how he felt, but I felt comfortable. I was like, okay, the judge is neutral. It’s not like a lawyer friend of his lawyers, who’s another lawyer in the room. It probably wouldn’t have made any difference. I guess it also depends on where you are in this process. For us, we’re probably already two years in.

Gabriella: [Deep sigh]

T.H.: Right. So my total journey was four years. 

Jessica: With all the bells and whistles.

T.H.: I mean we had everything. All your dreams come through. If it could be had, we had it. But I think that I would have been resistant if it was a lawyer as a mediator, as opposed to a judge, because we were so far along. But I guess, like in Jessica’s case, it wasn’t anything like my divorce. And so I guess if they come in agreement, then you probably don’t need representation. For me, that sounds very scary to not have my security blanket next to me and to walk into a room knowing that I’m not going to be tricked, I’m not going to be–so I think it really depends on your type of divorce. Like, Jessica, you would probably go to Gabriella. For me, I mean, I think you’re great, but I think that another lawyer on my payroll is scary. It’s scary.

Gabriella: It’s also interesting because I mean, I assume that the judge that you went to, they charged a fee too, right? For you, it was less–

T.H.: The judges I’m speaking about were in the courtroom. Then my lawyer recommended a retired judge to act as a mediator to try to mediate. But yes, there was a fee, of course.

Gabriella: Right, so for you, it was more about the idea of just having someone be a lawyer. It was like their designation. Was that the issue for you in terms of mediation?

T.H.: I don’t think I had another option. I think he came in, this is who we’re recommending, his name started with Judge, so I felt like, okay, they’re going to be fair. I’m just saying now looking back, I’m not sure based on where I was in the process and the contentious every day that I would have been okay with a lawyer. I don’t even think I knew that lawyers could be mediators. Because when you think about it, and you’re going down the road, and then all of a sudden you hear okay, now you have to go mediate. Okay, what does that mean? Well, we have a retired judge. Okay, good, so retired judges mediate. You take information as you as you need it. It wasn’t like I researched it. But I think that for Jessica and her situation, there’s more time around that, and it was easier to communicate. For me, lawyers sound like, oh, no, not another one.

Jessica: I’m going to continue with that because I feel like Gabriella, you get recommendations potentially from your lawyers, whoever it is, but what questions do you ask a mediator? How do you become comfortable with the fact that that person is going to be impartial? Because I also, I guess, the other side from T.H., I’d be afraid they’re going to favor the other side. How do you make sure that–what are the right questions to ask so that you feel comfortable that that’s not going to happen?

Gabriella: Well, I think the first step is, and kind of what T.H. I feel like your barrier to having a lawyer as a mediator was, just all these preconceived notions in your head maybe of what lawyers are like, and what judges are like, and what the mediation process is like. And so I would ask, meeting any potential mediator, try to explore those concerns with them. Like, I’m concerned about you being impartial, what do you do to combat that? So for example, in my mediation with my mediation clients, I say to them right off the bat I don’t take calls from one of you without the other person on the phone. I don’t take emails without the other person copied. If you send me an email and you don’t copy your spouse, I’m going to forward it to them. That’s my practice. Other lawyers might not practice that way, but I do that really out of transparency so that everyone can feel fair and no one’s getting in with the other person. If someone’s early to a mediation session, I don’t even have them come in. I wait for the other person to get there. Because just sitting around chatting, obviously we would not talk about the case, but just getting to know one another on a personal level, like – oh, whatever, I like your haircut, or what did you do today – that creates an awkward situation for the other person who’s five minutes late. I would ask your mediator, how do you confront that situation? How do you deal with phone calls, with emails, with seeing people if someone’s late? Something like that would be good questions to ask. But then you also have to remember that even when you go to court, you have a judge. They’re supposed to be neutral. Everyone’s human. A judge will think to themselves, “this case again?”, “this client again?” at the end of the day.

T.H.: Yeah.

Gabriella: You just have to hope that they can put that aside.  

T.H.: I think you’re absolutely right. It’s based on your experience. If you’re not planning your divorce, like really planning it before it happens, and you’re just like, all of a sudden it’s zero to 60, you just get the information as it’s needed and it comes, and you try to digest it, and then you just go, and then your experience is your experience. I think that it would be really great if people know about you and know what their options are. That’s why I think this podcast’s really beneficial so that people are educated ahead of time to understand that a mediator can be a lot of different things for a lot of different people. But ultimately, you’re bringing two people together to come to an agreement on something that’s very emotional and major. 

Gabriella: Yeah, and I would say also, T.H., I think it’s so interesting that you said that you didn’t want a lawyer as a mediator, because when I was talking to Jessica before, I was saying that if someone says to me, all right, you know what, I’m talking to other people also, what should I look for in a mediator? The first thing I say is they should be a matrimonial lawyer. Because, and I don’t know if your judge was a retired matrimonial judge–

T.H.: He was.

Gabriella: Right. So in that case, I would say, okay, I would also recommend a retired matrimonial judge. But if it came down to a maritime judge versus a matrimonial lawyer, you’d have to choose the matrimonial lawyer every time because, though they’re not giving you advice, they know the framework of the law. And so you don’t want to end up in mediation with someone who’s not a lawyer, a matrimonial lawyer, someone who’s maybe a different type of lawyer, or arbitrator, or even a lot of therapists do mediation, but then you come to an agreement and run it by your review attorney and they say, what on earth did you agree to? This is not the law. That’s what you need to keep in mind.

T.H.: I think it just needed an explanation around it. If it had been presented to me that it was going to be a lawyer, all of this would have been explained, and I would have been educated. I’m just going off a gut reaction, like no more lawyers, no more payrolls, no more–

Jessica: You were probably not the only one though.

T.H.: Hmm?

Gabriella: Yeah, no, definitely.

Jessica: You’re probably not the only one though. I think a lot of people think that another lawyer like, at whatever cost per hour. But it’s interesting, Gabriella, what you’re saying because it’s a little bit goes to what are some of the perceived misconceptions when it comes to mediation. So what do you think are the biggest misconceptions out there that people have when it comes to mediation?

Gabriella: Well, so along the lawyer vein, I think one of them is okay, if we go to mediation, we don’t have to deal with lawyers anymore. And so we talked about that with like, yes, you probably still do. You’re going to want to. I guess in T.H.’s situation, it was the reverse like you already had lawyers and you had another lawyer. Either way, you approach it, it’s that you’re going to have lawyers involved. 

And there’s a reason for that. Then another thing that I was thinking of that’s a misconception, and this goes along with the judge concept, is that mediators aren’t judges. We’re not tiebreakers. People, sometimes clients will come to me and each of them will tell me their story, and then they’ll just wait for me to say who’s right or who’s wrong, or what you should do. That’s not my job. My job is to help you two come to an agreement and really work together to come to that agreement.

Jessica: I thought that part of what a mediator does is to say, okay, look, you want $100, and you want $50, so you’re going to get $75. I did think that part of what a mediator does is decide who gets whatever–

T.H.: Makes a recommendation.

Gabriella: You can ask your mediator to do that, certainly. But if you go into–a good mediator, what’s that story about splitting the baby, right? A good mediator isn’t going to say split the baby. A good mediator is going to say, okay, let’s look at your concerns and your interests, and let’s look at your concerns and your interests. Let‘s figure out a way to make both people happy, right? Let’s come up with creative solutions. That’s something that I really liked about mediation is that you are able to. In a divorce, it would be, I want to keep the house. I want to sell the house. Okay, Judge, what should we do? The judge is going to tell you to sell the house and divide the proceeds, right? In mediation, you can say, okay, well, why do you want to keep the house? Well, I want to keep it because I don’t want to displace the kids before they enter high school. Okay, why do you want to sell the house? Because I need the money. Okay, so can we find a way to make both things work? Can we give someone a little extra money and have someone else keep the house for a few more years, and then we sell it, right? That’s not splitting the baby. That’s listening to both people, what they want, and helping them create a solution that makes both people happy. And you’re not going to get that in court.

Jessica: Then also, one of the misconceptions that you and I talked about, Gabriella, is the fact that mediation is not always the cheapest route.

Gabriella: No, it’s not. I feel like, T.H., I don’t know much about your situation, but it seems like maybe if you were in mediation from the beginning, it would have just been like 10 mediation sessions of screaming at each other. Then the process would break down, and you would have paid however much for that mediator’s time over all of those sessions. Then you just have to start all over in litigation. I guess maybe that’s what I should have led with, right? Like, it’s not necessarily the cheapest method if it’s not the right method for you. So that’s the key. That’s the key.

T.H.: You just said it right there. It has to be the right method for you. Then I’m going to go back. Finish what you’re saying, and I’ll go back to what–

Gabriella: I’m sorry, my headphones, they keep falling out. But to say that it’s not the right method for you doesn’t necessarily mean that you can’t be in mediation if you’re in a high conflict case. You can, you just need to–that’s another question to ask your mediator. Do you handle high conflict cases? How do you handle high conflict cases? Because high conflict cases can be mediated, they really can. But you just need the right person to do that.

T.H.: Mine didn’t end at mediation by the way. We went back to court. We couldn’t agree in mediation. So I really had the full a la carte menu. I really wasn’t kidding. What I was going to say, another misconception is this may not be the end. Once you go to mediation–

Jessica: It doesn’t work.

T.H.: –you go in with the intention that we can solve this here. But it doesn’t mean it can be solved there.

Gabriella: That’s true.

T.H.: Yeah, it’s unfortunate in a way. I don’t think it was everything–50% of it was now a waste of money, but I don’t necessarily think it was a waste of time because we were able to hear each other in a different way instead of our lawyers speaking on our behalf all the time. So I think that it was good. Again, I can’t speak for him, I can only speak for me, but we still had another two years or a year and a half after that before anything was resolved. But the mediation was–there were other ways that we could have done it, but I am at the extreme. I am an extreme case. I really wanted it to work. And I really did like the judge. What was great about him as a mediator was I think my ex-husband also thought that he really liked him. That means we felt like he really liked each of us.

Jessica: Right. That’s huge.

T.H.: So with you saying they’re not playing favorites, but I think each of us in our minds were like, he really likes me. I think he really likes me. So that’s a good–that worked, right? Both parties think that he cares, he’s compassionate, he understands, he’s being empathetic, so he’s roping us both in. But in the end, unfortunately, it wasn’t the end.

Gabriella: It wasn’t the end.

T.H.: But it does depend on your circumstance, your relationship. I mean, Jessica and I, through this process, have learned that every divorce is a snowflake is what one attorney told us. And it’s the truth. You need a special dynamic between both parties, between each party with you, right? You kind of need a little bit of star alignment to be successful in mediation, no?

Gabriella: You do. I think you need that in any divorce. I mean, I also litigate, and I tell that to my clients. Sometimes they’ll say the age-old question, how long is this going to take? And I give a version of what you said. It depends on your spouse, what they’re like. It depends on what their lawyer is like, right? I mean, I’ve had cases where someone tells me, oh, my husband, or my wife, hired this person. I’m just thinking like, oh, we’re in for it, right? We’re just in for it because they’re so difficult because they never settle cases because they make mountains out of molehills.

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