0216: Divorce Mediation: Interview with Susan Guthrie, Family Law Attorney, Mediator, and Host of Divorce & Beyond Podcast

  In this episode, we have an interview with Susan Guthrie - Family Law Attorney, Mediator, and Host of Divorce & Beyond Podcast. Learn more about Susan here: https://divorceinabetterway.com/. Visit us at divorceandyourmoney.com for the #1 divorce resources in the USA and get personalized help. Shawn: In the beginning of the process, as you're doing your research, one of the most important things you can do is figure out what are your options and what are the best ways to proceed during the divorce process. And know that the traditional method of divorce litigation is not the only method that exists when it comes to the divorce process, and you may have options. There's mediation, there's collaborative divorce. But in this particular episode, I want to discuss mediation, and to do that, I'm bringing in a great guest. Shawn: Her name is Susan Guthrie. She is a family law attorney with over 30 years of experience. And she's going to give us an overview of some of the key things about mediation to think about. She'll describe the process really well in this episode. And the other thing that's interesting about mediation is that there's the possibility for online mediation. And so, there may be some advantages to that as well. So, I hope you enjoy the interview with Susan Guthrie and also be sure to check out her podcast. She has a really good podcast that's called Divorce and Beyond. So, without further ado, here's my interview with Susan. Shawn: Today on the show I have with me Susan Guthrie. Susan is a family law attorney, mediator, and a podcast host of her own. Susan, welcome to the show. Susan: Thank you, Shawn. I'm so pleased to be here. Thank you for having me. Shawn: Susan, let's start with ... actually, I just want to start with the podcast so other people can listen to it. It's great. I recently did an interview on it. Why don't you tell us about your podcast? Susan: Thank you. Yes, and by the way, your episode is doing very, very well. People are always interested in Divorce and Their Money, it's called, my podcast is, Divorce and Beyond. It's really focused on, I've been a divorce attorney and a mediator for 30 years, so I bring that insider knowledge to the divorce process, and bring experts on to help with that, such as yourself. But I also am very much focused on the beyond, because divorce is really a finite time in your life or I certainly hope that it is, and you have a future ahead. So, many of our episodes are focused on preparing for the beyond, preparing for your future. Shawn: Great, and I encourage everyone to listen to it. There's lots of great episodes on there and you bring a great collection of interview guests on there as well. That's really interesting. Susan: Oh, thank you. Shawn: So, why don't you tell us a little bit about your background. I know you said you practiced for 30 years, but why don't you give us your credentials so to speak? So, we all understand who we're listening to. Susan: I have practiced as a family law attorney and still do to some degree for 30 years. My original State of practice was Connecticut, and I was located there in Fairfield County for 25 years or so, with a pretty traditional law practice. Then, branched out on my own and started moving around the country. I moved to California first, so I'm also licensed to practice law there. But I also segued my practice over to mediation, and in fact, that's all from a divorce perspective that I do in the process of helping couples negotiate and settle their divorce issues. I now live in Chicago. Susan: My practice is now entirely online, and I help people both through online divorce mediation services as well as legal coaching services around the world because I can do it online. I feel very lucky that I have been a divorce attorney and operating at a fairly high level. I dealt with a lot of high conflict and high net worth cases during my litigation practice. So, as you mentioned, I have access to a large number of really excellent experts because I've worked with them over the years in my practice, and I love bringing that wealth of knowledge and really that insider side of things to my listeners. Shawn: Yeah, I think that's great. You worked with a lot of high conflict people and now you do a lot of mediation work. Why did you make that shift? Susan: Yeah. So, it was sort of two fold. But really what it boiled down to, and for anyone who's seen the movie that's out right now, Marriage Story, you will understand I think what I'm talking about. But I got involved in divorce litigation when I first got out of law school, because frankly 30 years ago, that's really all that was out there. The litigation process is very adversarial. It is set up on a party A versus party B platform like any other lawsuit. Unfortunately, when you're talking about restructuring families, that is not a very good model for success. Susan: Unfortunately, that process actually drives people further apart, and then, when they find themselves post-divorce needing to co-parent or communicate, the animosity and the adversity that was brought up during the divorce and exacerbated during the litigation process really only makes it worse. It sets up an ongoing conflict cycle. So, mediation is an opportunity for parties to sit down, couples to sit down, and work together in a more cooperative fashion to communicate and restructure their family in a way that works best for all of them. Susan: It's not based on that win lose model, and so now having worked in both formats, the reason I only do mediation at this point is because the results for clients are so much better. Shawn: Let's start by defining what is mediation versus litigation. Can you just give us an overview of what that means, what that process looks like, how it differs? Susan: Sure, and actually that's a great place to start because there is a great deal of misunderstanding at times for people when it comes to mediation. I always hear it called the kinder, gentler way to divorce, or the kumbaya method of divorce. I will tell you, divorce mediation, like any process that you would go through to negotiate or resolve the issues of a divorce, it takes effort. It has its moments where it's not an easy process, but divorce mediation is based upon a principle of the two parties sitting down with a neutral professional, that could be an attorney like myself. It could be a financial professional. Susan: I know a lot of professionals who are financial advisors, who also are mediators, or therapists, or other professionals, but they sit down with a trained professional who's there to help them identify the issues that they need to resolve in the divorce, to give them an understanding of the law, and context, and nuance around those issues. Then, really importantly, to support both of them in having the difficult conversations that need to be had on how those issues are going to be resolved, with an eye to identifying what works best for all of them. Again, we're always in mediation looking for the third solution. Susan: We're not looking for the win for one side and a loss for the other. We're looking for that third solution that allows everyone to get as much of what they want on a needs base or interest based perspective, so that everyone walks away with a decision and with agreements that incorporate as much as possible what they've chosen that they can and cannot live with. Shawn: Let's give a concrete example of that, and I'm just thinking of, I want to just use a very simple case. Let's just say we have a house, a couple of retirement accounts, a couple of cars. How would I know when to use mediation and what would that look like for me versus going the traditional route and what would that mediation process look like start to finish? Susan: The two processes, they look similar because any method that you're going to use to resolve your divorce is going to sort of go through the same stages. You're going to have the quantifying or the pulling together of information stage. In litigation, we call that discovery. In mediation, we call it information gathering phase, but then you're going to discuss the issues. Then, you're going to come to agreement on the issues in 95% of the cases. So, the difference with mediation is, in litigation everything is done on a compulsory manner and fashion. Motions are filed, requests for orders are made, requests for production are made. Susan: Everything has time limits, and rules, and things are done because you are under court orders to do them. The difference is, in mediation, everything is done by agreement, including the fact that the parties are in mediation at all. Mediation is 100% voluntary as opposed to litigation, which people can be dragged kicking and screaming into, or if they ignore it, it's going to happen without them. So, the mediation process itself, just as a litigation case would start, does start with the information gathering. But it's not done in that fashion where you exchange compulsory requests for information. Susan: We sit down with your mediator, with the two clients, and compile all of the necessary information by agreement that we're going to do that as a part of the transparency of the process. That has a lot of different effects. The biggest one being it takes much less time to pull together all the information because we are talking about what everyone needs to see, wants to see, and agreeing to pull it together. It's also much less expensive because the parties are not utilizing legal counsel, filing of motions, all of which that they pay their attorneys for. Susan: It's usually much more successful, because nobody will drag their feet usually in the same fashion because, again, they've agreed that they're coming to the table to work through the process. So, in many ways, I've seen litigation cases where we have literally spent years, you mentioned a simple case where there's a house and some accounts, et cetera, that could take a relatively short period of time with that type of state to value things, because you have either written statements or you can get an appraisal. But when you get into some more complicated cases, or where there's a family owned business, or a cash business, or something of that nature, I've had cases drag out forever in the discovery process because it's so hard to get the information exchange, and that really just doesn't happen in the mediation setting. Shawn: You covered a lot of things that I have some kind of followup questions on. One of them that comes up, I hear every week or so is, oftentimes one party may not be as forthcoming as they should be during mediation. How does one handle that? Susan: So, that happens. Definitely it happens in litigation as well. So, the first thing to remember is, because mediation is by agreement, both of the parties have a reason or reasons why they have agreed to come to the negotiation table in mediation. Mediation tends to move much more quickly than litigation, so maybe time is an issue for them. It's usually infinitely less expensive. Maybe money is an issue for them. Maybe they feel it's a better forum for working through the issues. Whatever their motivations are, that brought them to the table, are the motivations that will also compel people to be forthcoming with the information that is required. Susan: Because what happens is if people do not come forth with requested information, the mediation process comes to a halt. Because if you are sitting at a table and one party does not feel they have the information that they need in order to make the decisions or the agreements that need to be made, the process can't move forward. You are putting people in the position, by making that choice not to be forthcoming, you're putting the other side in the position of having to take you into litigation. Susan: Having to compel your discovery as we were talking about earlier with the motions, and the depositions, and all of that. So, usually, it takes the mediator reminding the parties why they're there, that this is a voluntary process. They agreed to be involved in it, and failure to comply with reasonable requests for information are just by necessity going to bring the process to a conclusion. Shawn: I think that makes sense. I want to ask some technical questions about mediation, or just some basic questions is, you're a mediator and you're also an attorney, do the parties also have their own attorneys? How does that work? Who's actually in these mediation sessions? Susan: The majority of my mediation sessions are just the two people who are going through the process. That is not to say that they don't have outside consulting professionals, and I am very much a believer in the team approach to divorce. I think that everyone usually will need some sort of support as they go through the mediation or divorce process, whatever they're going through. That can include a consulting attorney, because as you point out, I am an attorney, but when I am operating as a mediator, I am not representing either of the parties. Susan: That would be an ethical breach. You can't, as an attorney, represent both sides of an equation. There's a conflict of interest there. So, your mediator, even if they're an attorney, is there as a neutral professional to support both parties. But often, people will need some outside legal advice, and it can be very, very helpful to the mediation process for them to have a good professional that they can go to. Other professionals are people like you CDFAs. I highly recommend using a certified divorce financial analyst, or a financial support team, especially in those cases. Susan: You mentioned that there are often one side of an equation in a divorce where they're not forthcoming with information. There's another paradigm that comes up all the time where we have one party who's pretty financially savvy and the other one who is not, and so, they feel very disempowered in making decisions. So, getting them some support by getting them a financial advisor or getting them a financial planner analyst, can be very helpful to the mediation process because it helps to support them and educate them as they go through. Another person that's often brought in is a therapist. Susan: If we have parenting issues, and maybe we have an issue with special needs for a child or developmental issues around the child's upbringing. So, I very much believe in the team approach to divorce, the divorce process as a whole, and certainly in mediation. Shawn: If I'm thinking about the mediation process, sometimes people think, is it just one meeting in an afternoon, is it multiple meetings? How does that work? Susan: Generally, it's a series of meetings. My mediations tend to be scheduled for two hours at a time, and that is because in two hours we usually can make some headway, start talking about real issues, and making proposals, and making agreements. But beyond two hours, it's an emotional context, right? You're talking about your kids, you're talking about your money, you're talking about separating all those things. So, the emotional content is very fatiguing. You are either in the same room, or if you are with me mediating, you're in the same Zoom meeting, and two hours tends to be where people sort of burn out. Susan: And what I don't want is my clients making decisions out of fatigue, or just saying because they're just so tired and they want to move on saying, "Fine, I'll do that." Because what ends up happening is they then leave the mediation, that session, come back to the next one having thought about it and they will backtrack. And that's harmful to the process only because now we have trust issues, "Well, you said you would do it. I relied upon that and now you're backtracking." So, it's better to do it in bite sized chunks that you can process, take your time, and move through it. Susan: Usually, it depends on the couple. It's usually a few three, two-hour sessions. It can be certainly more than that. I've had cases move faster. There are other types of mediations, so another type of mediation for family cases that people will be acquainted with is a case that's been in the litigation process all along. They're usually close to the courtroom door for trial, and they will, as what I call last ditch effort, resort, to sitting with a mediator for sometimes a full day session to try and resolve those last outstanding issues. Susan: In those cases, usually the attorneys who have been representing the clients all along are involved, and those usually tend to be one marathon type, long day type session. But for people who start in mediation, their divorce process from the start is in mediation, usually two, maybe three-hour sessions and a few of those, but infinitely faster. I will tell you, most of my divorce mediations are completed before the sixth month. California has a six-month waiting period. Connecticut has a 90-day waiting period. Susan: Those are my States of licensure, and we're definitely usually done by the sixth month mark in California, three months ... It just depends on the complications of the issues. Shawn: That's good to know, and if I'm sitting at home listening to this or wherever I may be listening to this, how do I know whether I can go down the mediation route? What kind of things should I be thinking about to say and maybe even conversations I might need to have with my spouse in terms of, "This is an approach that may work for us." Susan: That's another great question, because that's one of my key things I want people to know, that your best approach to divorce is to try mediation in most cases from the beginning. Because if it doesn't work, you always have litigation to fall back on. That will always be there for you. But knowing that it's a possibility at the beginning and giving it a try for all of the reasons of all of the benefits that it has, is something that I love for people to know from the very beginning. So, some of the things to be thinking about are, do you have the ability to self advocate? Susan: And if you don't feel that you do, can you find support to help you with that? There are a lot of amazing divorce coaches, legal coaches like myself. I work with a number of people going through mediation, helping them to strategize what they're looking for. I was just listening to one of your podcast episodes and you mentioned the question, what do you want? That's a huge question when you go into a mediation. You don't go into any process of divorce without knowing where you want to go, or the process is going to happen to you rather than you being an active participant in it. Susan: But that's really the question, is do you have the wherewithal to sit down and do the work that needs to be done with the help of your mediator? And to bring your spouse to the table, people ask me all the time, "Well, I'd love to do mediation. It's less expensive, it's less stressful, it's less time consuming, it's less adversarial. All of those things, it's better. It helps us create communication pathways for our kids so that we can co-parent in the future." All of those are benefits and those are actually the things that help you to talk to your spouse about trying mediation. Susan: Because the thing I always tell people is, the one thing that we do know after having been married to someone is usually what their interests are. And usually, there's one or more benefit of mediation that will appeal to them. Often, it's the cost savings. You and I both know the average divorce in the United States is in the 20s of thousands of dollars per person these days to litigate. Many people, even if they have that kind of money laying around, don't want to spend that kind of money on getting divorce. By the way, it can go much, much higher than that. Mediation is much less expensive. Susan: It tends to be much less time consuming, less stressful. You have much more control over the process. So, knowing whatever you know about your spouse and what would appeal to them, that is usually the best way to approach them and ask them to consider the process. Shawn: That make sense, and can someone come to you for select issues in a divorce? So, let's just say there's 10 things to figure out and they agree upon seven of them, but there's three issues that they still haven't quite resolved yet. Would mediation work for that? Susan: Oh, absolutely. In fact, I often work with couples who maybe have worked out the financial side, but they need help with the parenting plan or vice versa. They know what they want to do parenting wise, but there are certain issues on the side of the finances that they just can't quite resolve. So, you can bring limited issues to mediation. Any sort of any issue can be mediated. Many people who have gone through divorce but then after the divorce there's been a change of circumstances. Someone loses their job, someone gets a big raise, something with the kids comes up and you need to change your parenting plan because children aren't static. Susan: I often mediate that post-dissolution type matter as well. The only thing I would caution, and I just don't want people, because attorneys and mediators are accused often of ramping up, making problems in a divorce that didn't need to be there. What happens sometimes, when a couple comes to a mediator or an attorney to work out issues and they think they've resolved a bunch of them, but they have a couple that still need to be resolved. The thing with a divorce settlement is it's a puzzle. It's not separate blocks of issues. Susan: Everything works together, right? It's a family. So, the money, and the kids, and the house, and all of those things work together. So, sometimes the outstanding issues will have an impact on those issues that they feel they have resolved. So, some of those issues may need to be reworked or looked at again if they don't fit into the overall puzzle context. But, again, that's where mediation is great because you can sit down and talk about, in the broad picture, why maybe perhaps something that they thought they wanted to do isn't going to work in light of another aspect of their settlement that they also would like to accomplish. Shawn: Yeah, that's a good point, is that sometimes it's very hard to isolate particular issues in a divorce, because if you pull on one thing or adjust one thing, it can affect every other item. Susan: Exactly. Shawn: It may work in certain cases, but you have to be open to shifting or changing other parts of the big picture when you do that. Susan: Absolutely. I always tell my clients in mediation, I work off a written agenda. I find people like the visual of an agenda that outlines all of their issues, and then I take notes on it for them as we're going along. I always tell them, although an agenda is a linear thing and item one, item two, item three, and even if we're going to move through it in that order, it doesn't mean that we have to resolve issue one in order to move on to issue two. Often, it's, let's discuss issue one, come up with some possibilities, and then table issue one and work on the next issues because in the end, all of them need to work together. Susan: As an example, someone often wants to keep the marital residence, and both sides may be open to that and may have reasons why they want that to happen. But until you get into the financial side, with support and asset distribution and debt distribution, you may not know if that person can actually afford to maintain the property. So, that's a very common question that will come up, where we have to sort of resolve the support issues and the financial issues in order to know if what they want to do with the house is actually going to work. Shawn: That's great. One last question, which is, at least as it pertains to the mediation, is you do online mediation work. I know you've done in person, of course, work as well. How do you find the difference between just the setting, be it a video call versus everyone's huddled in a conference room kind of atmosphere? Can you just kind of give us your pros, cons, thoughts about that? Susan: Yeah. It's interesting because I do now have an entirely online practice, and I have to say, especially for divorce mediation, I've actually found that the parties having the ability to have a little bit of space, because they do not need to be in the same physical location in order to mediate online, that's actually been a benefit for most of my clients. That they feel more able to emotionally deal with the conversations that need to be had as opposed to sitting just a few feet away from each other in the same room. Susan: I've had many people, when I had a brick and mortar practice, who would come and I would meet with a couple for a consult to just decide if they wanted to mediate. And in the end, it would come down to one of them saying, "I loved all the benefits, but I just emotionally don't feel like I can sit in the same room with my spouse and do this at this moment in time." Because as we know, divorce, yes it is a financial transaction, we're talking about money, et cetera. But in reality, it is an emotional transaction as well. Susan: And so, the video context gives people a little more space, but still you have the ability to see the other person because 85% of our communication is visual, and most of that is our facial expressions and voice. What we say and how we say it, our voice inflections. So, much of that is still readily available in the online context. So, for me, in my experiences, it's actually been a benefit to the mediation process, and most clients are thrilled to be online. They don't have to sit in traffic. They don't have to get a babysitter. They don't have to leave work early. Susan: I know you work online quite a bit and so you know some of those benefits. It has translated very well to the mediation practice. In fact, I train other mediators in how to conduct their mediations online, because this is such a quickly growing aspect of the mediation practice. My colleagues are fascinated by it. Shawn: Yeah, and I think that's one of the hardest things is when you are getting divorced, having to be three feet away from the person you're getting divorced from, staring right at them the whole time. It can make the emotional side of things amplify them quite a bit, just being in the same room. They're funny in retrospect even from the client's perspective, but a lot of times where someone yells, stomps out, runs out of the room, just can't stand being in person with that person they're getting divorced from. Shawn: It's divorce and it's not a pleasant process to begin with. This isn't a civil suit business dispute. So, I think there are a lot of advantages to the online perspective for people who might not have considered it as well, just from that. Susan: Yeah, the ability to, in any way that we can, keep the emotional content a little at a lower level is beneficial to the process. Because the minute people start making decisions from that emotional place, from anger, from fear, from hurt, whatever, divorce unfortunately doesn't embody usually a lot of positive emotions. It's usually a lot of negative emotional content, and the higher that level, the harder it is for people to make rational reason decisions. As you know, these are decisions that are going to live with you, and your family, and your children for years to come. Susan: So, you want to make them from the best emotional place possible, and I'm not saying that it's always easy. But another thing that I do is I incorporate mindfulness techniques into my mediation practice and encourage my clients to have a mindfulness practice if they're open to that, only because it does help. When the emotions start to rise up, to be able to take that step back and find some space. It's really important to be able to think clearly, and that's another reason, going back to where I said the sessions are usually only about two hours long. Susan: I want people making decisions in a space where they feel that those decisions were good ones, or at least made from a reasonable place and that they can live with them. Shawn: That's excellent and thank you for coming on and explaining the basics and the essential parts of mediation. It's not a subject that I talk about too often on my podcast. Why don't you give us the best way to contact you and to learn more? Hopefully, have people potentially work with you in the future if mediation or other services are right for them. Susan: Absolutely. Pretty much everything about me can be found on my website, which is divorceinabetterway.com. My email is [email protected]. I encourage anyone who's going through divorce to take a look at the website. I have a lot of curated resources, most of them free, or special discounts that guests on my podcast have offered. I have your book going up on my website shortly, so that people can find it who have listened to the podcast, or go there. But I like to bring as much information to people because that is so empowering in the divorce process. Susan: Get your education, get your information. So, divorceinabetterway.com, and then also the podcast has its own website which can be found through Divorce in a Better Way, or at divorceandbeyondpod.com. Shawn: And outside of mediation you were telling me you do a few other services. Just so people can know, can you describe those? Susan: Yeah, so one of my biggest areas of practice at the moment is legal coaching, which is a little bit different than divorce coaching, because what I'm doing is getting involved in cases. Usually, they're either high conflict cases, where someone is dealing with a high conflict ex that can be a narcissist, a borderline personality disordered person, or just someone who is very difficult to deal with, or high net worth cases. I'm helping the client to learn to manage those relationships, manage the communication so that they can have as much control over their lives as possible. Susan: I help with strategizing, with negotiation strategies. I've been a divorce attorney for 30 years. I negotiate every day of my life. I have to stop myself from doing it in the grocery line because it's so second nature for me. But your average person, unless they have negotiation in their business life, that's not a normal, that's not something that many people are comfortable with. So, I work with just a lot of clients on how to identify what they want and then how to strategize and negotiate to get that in the divorce process. I work with people all around the world in that context. I have clients across this country, Australia, Europe, Canada, all over. Shawn: Well, Susan, thank you very much for coming on the show. I really enjoyed the conversation and I hope the listeners will, too. Susan: Well, and thank you so much for having me, and thank you for coming on my show. Again, I loved that episode and so do my listeners. So, thank you. Shawn: Now, before you go, I want to make sure you get some really important information. I'm going to tell you about a few things that maybe of interest to you. First as a favor, is if you could leave a review, if you're on the iTunes store, leave a review on iTunes, or if you search Divorce and Your Money on a website called Trustpilot or on Google, you can leave a review there. It's quick, it's anonymous. It only takes a few seconds and I really, really appreciate your feedback. I have lots of reviews on iTunes and on Trustpilot, and I appreciate hearing your stories. Shawn: Also, on divorceandyourmoney.com, you can get lots of great information. Of course, you can book a 30-minute strategy session directly with me. There's two types of strategy calls you can book, just a normal strategy session, where we discuss the questions that are most pressing to you regardless of where you are in the divorce process, be at the beginning, towards the end, or in the middle. It doesn't really matter. There's lots of great information we can cover during that strategy call. Also, we have a document review call. Shawn: It's been one of the biggest things that we've done over the past year, which is you can send me your documents, be it your financial affidavit, a settlement agreement, or other documents that you would like for me to review. Then, I review those in advance of the call and then we get to discuss them in-depth as part of a strategy session and get specific answers to some of the specific documents and things that you are considering. Also, for those who need ongoing support, we do have a few options for ongoing support, but regardless, it all starts with a coaching call that you can book at divorceandyourmoney.com. Shawn: Don't forget to also get a copy of my new book. It's called Divorce and Your Money: How to Avoid Costly Divorce Mistakes. It's available on my website, or also on Amazon. You just look me up and make sure you get the new edition. It is filled with excellent information regarding the divorce process, and I know that you will find it helpful. Once you've read the book, be sure to leave a review. That really helps me. I appreciate your feedback and it also helps other people as they try and find this information. And finally, last but not least by any means is on the store at divorceandyourmoney.com, if you click on the store button, you can get access to the full archive of podcast episodes. Shawn: There's over 200 episodes, and what's great about the store link is that the episodes are organized in neat buckets, and they're organized by topic. So, it's very easy to follow along with the information, and it is easy to pick out the key topics that matter most to you. You can get all of those podcast episodes in the store. Thank you so much for listening. I'm your host, Shawn Leamon, MBA and Certified Divorce Financial Analyst. Take care.