while we have seen how emotionally charged and chaotic divorce can be from films such as the dramatic kramer vs kramer as well as comedies such as liar liar and war of the roses d have to be a painful and arduous experience fraught with dramatic courtroom battles or is there another way today we're going to explore a mediator's approach to family law and facing issues such as division of property alimony child support and custody i marry lynch and welcome to pro se nation understand the law for oneself joining me today are three members of the new jersey association of professional mediators and i'd like to welcome gabrielle stretch canon isaacs and carl kandel o c who is the president of the new jersey association of professional mediator ozy specializes in divorce mediation he is a graduate of boston college law school and practiced law for twenty two years he was then c e o of several companies he is the founder and pas director of the new jersey association of professional mediators forty hour basic divorce mediation training course gabrial stritch is an attorney an accredited mediator and the principal of the stritch law firm specializing in family law elder est and employment matters she is licensed in new jersey and pennsylvania and is a graduate of rutgers law school and i'm also welcoming hannon isaacs and a credited mediator attorney an arbitrator specializing in complex labor and employment cases commercial insurance personal injury and divorce dispute is a graduate of north carolina university law school and has held leadership positions in both the new jersey state bar association and the new jersey association of professional mediators welcome so glad you could be here today thank you so since pro se nation is for the average non lawyer average citizen i'd like to start with defining our terms so i'd like to start with you carl since you hold the highest post here right maybe just to tell us a little bit about what is mediation because i think it's misunderstood by a lot of people sure there are a lot deaf definitions of mediation let me give you a pretty simple one it's a voluntary process that allows people to resolve a dispute through the use of a neutral party of the media and the emphasis  voluntary and the parties resolving a dispute so the mediator really is a facilitator is an assistant coach that lets the parties resolve their own issues great and hanin since you are now also you're an attorney you are a mediator and an arbitrator and i think the term arbitrator is often misunderstood by a lot of people could you explain what sure i would say the simplest definition would be its private judging that is instead of going to the public court as a citizen and asking the court to resolve the matter of the parties decide in advance or even after the dispute has arisen that they wish to put the decision in the hands of a third party neutral who has the power to decide sometimes they agree that that decision is binding others times they would say perhaps  it's a recommendation and who gets to choose the arbitrator because the centrally the arbitrator is like a judge right playing the role of a judge i think that's one of the benefits of arbitration for people who want to use that approach and sometimes they go to mediation first and if they can't resolve their those say we'd rather still stay out of court so how about a private judge private arbitration the the parties  family law cases what are the key benefits well first of all you get rid of all the formality there is tremendous time and cost and object over just what's called discovery formal questions are submitted the clients have to get all these documents they have to draft enters and they have to meet with their lawyer and and then it has to be adjusted for legal purposes and now lots of time and expense is gone by and all the emotional issue hasn't even been addressed yet what happens to the kids which is really important to a lot of people so in mediation we focus on what do we absolutely need to know and look at we just agree what's brought to the next mediation and we just cut out a lot of that kind of thing and we really focus instead of well what's the implication if it's one let's night parenting time like what would work for you and your children what is your work situation what is your household situation what what is going to work for the family when you're sort of split in the oblong instead of a circle  and so it addresses emotional financial legal but it does it with the parties making self determination and focusing on what works for them rather than getting hung up a technicality so i want to add to that to go back to a word that karl used in the beginning which is voluntary this tremendous difference in terms of people's willingness to enforce the agreements they reach that they actually made those agreements makes a tremendous there's actually good data on that point nationally that people who who participate in creating the process and the outcome will be much more likely self in force as opposed to a judge might throw a thunderbolt at the other party but you're going to have to force and force and force and the other party going to try to win the next round in the next round so it's more or less adversary that right some more of a self people feel that there's it's more self determined right that they have a voice in the process coral what do you think what are some of the keep benefits well certainly if touched upon the cost  time i think the biggest benefit in the long run is to children if the parties have children there's lots of data saying that a trial can survive a divorce well as long as the child or children are not put in the middle they don't cause conflict for the trial that is crucial my wife's the psychologist the child psychologist and she sees the damage all the time that regular divorces adversarial divorces can cause to children and this can all be avoided if it through a voluntary process where the parties really don't get as angry because they are working things out themselves i think that's a really crucial which is important to the long run to the children and to the parents so you know we end you've you've all mentioned  or you it's a cost has been mentioned the complexity of the traditional method has been mentioned well why are more people or are more people using mediation in family law now would you say is it growing is in my opinion yes ok i'm in mediation for quite a while now has really been a regular part of my practice i always have multiple mediation cases going on and there are people that are able to make mediation even a full time practice which is wonderful to see i also do collaborative law which is sort of a blend that one could say of mediation and traditional representation not for discussion here but between these two the whole point is there's arbitration it's collaborative law there's mediation these are all alternate dispute resolutions and they're all preferable to litigation if the parties want to resolve the matter and they're not focused on revenge and just getting anger out of trying to destroy the other person and that kind of thing if that's their focus then those alternate dispute resolution won't work so i'll say in addition to whatever i was mentioning the culture in new jersey and some other states has shifted very much towards mediation and other forms of alternative dispute resolution what really turned things i believe is the court system as has happened in many states new jersey is destry resolution just because they started that idea thirty years ago they don't want to call it alternatives so they came up with another phrase but there are court rules that talk very specifically about mediation arbitration use of neutral experts  know pretty much whatever the parties will agree to and sometimes what the court will push them to participate in you know people talk about mandatory mediation how could be self determination if the court says you have to go up you have to show up you don't have to reach an agreement and nobody punishes you if you sit with your arms folded and leave after two hours so that's now the contrast to that is what about those people who are averse to doing any of this and there are those people sometimes it's mental illness quite frankly i'm on the part of one party or both and then the lawyers have to tangle with that but even then the court system pressures makes people go to  mediation through the court process right so there's many different ways and one quick data point i've said for many years and many people say this less than two percent of cases end up being tried now you could say whatever number that is a year fifty thousand divorces whatever there's three times that people who never even start the case they just go right to negotiation so you can't them the court can't even measure that there's a vast number of these cases that are instead of waiting till you're right at the eve of trial to come up with an answer that you could have got three years before with a cost of small fraction of what it ended up costing these people and possibly getting a better result right so the mediation world talks about getting a win win outcome rather than the court process which and even arbitration which is by definition a win lose and sometimes a lose lose right carolled how often are people coming to you before they even file for divorce probably most of the time i look a most of the time they are coming for me before they file ok usually someone already has file sometimes they're late in the process and they want to do it but i would say more often than not before they have read even retained attorney ok that's true for me i'll sell so and i just want to actually get  civil regular civil cases it is a mandatory one hour face to face mediation in new jersey is the same true for family law and i have  many many years ago before mediation really became established take a sick kid say in new jersey they developed a system where you go to early settlement panel ok which is another alternate dispute resolution format to seize an attorney's listen to the case but it's pretty late in the day and the case is supposed to be ready for trial and make recommendations as to how to settle the parties don't have to accept it but  the parties go to mediation for to work out the parenting time or particular aspect of the parent not like all the days of whatever and then it's mandatory the court who who maybe what kind of who has the ideal personality for this i mean you probably know right off the bat when people walk in and you're like yeah this is never going to work like that to people in more of the roses ship there's i mean and so i mean i've had to just say to me well you're only a lawyer how do you know if someone has a personality disorder and the answer is i read cosmo go through the question you go it's like obscenity you know when you're right but you know for example when you've gotten forty two e mails about the hollowing holiday ok kidding you know that's outside of normal so i don't have to know the exact diagnosis and i wouldn't even dream of trying it but it doesn't take long for someone in the field to realize that this person  is extremely challenging is the word i would is and different techniques are needed with those kinds of people for example you're going to do parallel parenting you know the whole point normally of mediation is you're going to be collaborative with the parent in a out communication is very strict as to how it works and why it works and well it's it's a very different approach to make it work you know i would say if they walk in the door my office there they can do mediation that's i found that an optimist well no that's from experience it's experience that if they can have enough commonality of interests to walk in the office to find out what this is about they can do it because you see it's a self selecting population these people have already investigated a little bit about it and said look we want to offer control over what we're doing to go see whether we can do it the different space from both of these folks i have plenty of people who come into my office to mediate where after a session or two i'm pretty clear they're not going to work well together and i'll say it's partly my sensitivity i do not like working in a situation where one of the parties is overbearing the other things usually men but sometimes it's women right i can remember a case where a woman not looking at her husband looked at me and said you don't understand i want him dead oh boy and you know that famous photograph of the native american chief with a tear coming down his cheek but the guy was sitting right next to her all and i'm like whatever wherever my skill sets are you know i actually said i want you to go work with a communications coach there's always something you can come up with sometimes you say i want you to bring a lawyer right because the pattern that these people have sometimes it's not shocking to hear this people show up at mediation using the same bad will that they generated during the marriage so somebody who wants to hide their resources says i'm not showing it to the other party not not showing it to you and you can't make me well i'm like well these folks need lawyers maybe because maybe they need to go through some of that discovery that gabriele says you could do without i would like to get to maybe each of you can weigh in on on each one you know what is it that the different or and maybe even better about mediation when it comes to alimony equitable distribution parenting custody issues what is different about the process in the way you're talking to the couples well let's talk about alimony a favorite of everybody and money so a lot of times lawyers will look the gross incomes of both parties and say well you know a third of the difference is x that's what alimony should be and of course that's not what the statute provides it provide as eleven factors and talks about  ability to pay a late the marriage lot of other factors but in mediation first of all i work with the couples on budgets and get them to agree on what is a realist what was the realistic marital budget and that means it can't be too low or too high it's got to match the joint net income including the savings component that they've had or the budget isn't right right even if it's too low than where did that money total has to be within the joint net income to be realistic right and then once we do that is well you have this much income and you've got to got a excess of say a thousand a month and you're kind of short a thousand a month there's that number makes some sense to transfer from one party to the other now chorused alimony has tax implications the person paying alimony typically it's a deduction for them on taxes and it's taxable to the person receiving it and so how is that different then let's compare it to going before a judge or you know two lawyers are now some sort of ok maybe slugging it out figuring this out now they go before a judge if you know you're not doing mediation doesn't the judge say well guess what those don't add up or that doesn't seem very fair i mean that was exactly what i would say of the three of us i spend more time in court on these matters and i have a healthy respect for the mediation model collaborative arbitration etc there are some times where you're just such completely different versions of fact this sort of ironic that each party thinks the other one they might not like them but they have incredible you know u to optimistic view of the housewife who has not worked for twenty five years and should be making eighty thousand dollars for the husband who's you know sixty three and it says i'm about to get fired from my job the wife says you know he's going to work till he's eighty so so some of that is just bad sort of receptivity to some truths and to me the judge sometimes almost plays the role of a mediator kind of coming up with us hopefully as a set of facts that accounts for these include really wide deviations of understanding and says this is how it's going to be now what happens in court the first shot that you have usually is an interim award in other words somebody in months to has a need for money so they're not going to wait for a year and a half to ask the judge for how they're going to go and i what's called  or an interim application and a lot of times that decision by a judge on an interim basis is sort of creep into some final settlement a lot of these cases are not going to go to trial over that being ranked with you're talking about a trial and you're talking about doing it with attorneys is you're in that the serial system that's not where you want to be parties need to work this out themselves the help of a mediator now gabrielle and i do alimony differently but it's still the end of the day it's the decision of the parties we educate them we may we might do a whole bunch of things and that but what we're allowing them to do is make their decision that's power if they can i'm not averse to it i'm just saying in reality there are some people there are not ok so you're not seeing where even if we urge them to do that somebody may take you know my thing is i think most as would say if the person is being ethical and they're not violating the law they can take whatever crazy position they want and actually we're obligated to articulate that do a better job for them than they would on their own that's the theory of law is you're allowed  take your position even if everybody else tells you that you're nuts for taking that or a judge will say go to mediation go to this go to that but at the end of the day we're kind of stuck in that system if you're going to be in that system some people give it up and never want to see another contested case but you know i have thing on that clearly we're going to have to have another showing mediation because we've kind of hit our limits here and it went really fast i'm going to try to fix this in a post so i'm going to give you about thirty seconds each i want you to tell me what gabrielle what do you love about being a mediator well i love helping people resolve their problems ideas devil as well as an elder law and civil case as well as family and it's always boarding it's all a little different it's handled differently depending what kind of case it is but it's you know you've done something right when at the end of the mediation and you have a written proposed agreement and hugging you afterwards and that i really love that i don't feel you know really see that that much in a court situation then carl i would also say that the personal reward you get out of doing this and helping couples get through the really bad place they're in when they're getting divorced to have a much better life for each of them is really important but it's also so mentally challenging it's it's it's really good work to keep your mind active and to be thinking of strategies the things you do are i think really wonderful for you as a person to do and i just enjoy it immensely a little bit of the minister coming out and you write well i've overcome my twenty two years of being a lawyer and probably some of my years of running businesses so it's a good blend to be a mediator because i know some of the law and i know the practicalities of what you have to do so yes and have and what do you most enjoy mediation so for me i find it healing when i'm with people who can do the work where they are not having  overbearing relationship right in front of you so i says if you have the or no one's cutting the chandelier about very exact heads or threat or threatening the mediator i don't like that so the idea is that you you're diagnosing in some ways their dispute figuring out what they need coming up with elegant options for them to pick and then letting them decide what they want to do even if it's not what i would do and hopefully they'll also get it reviewed by outside counsel i think that's a very important thing because i'm not there as an advocate or an adversary of either party so therefore there's nobody sort of speaking to them about their own interests they're what we want them to do is not get a bomb or a lawyer they should get somebody who will support them in the mediation process and go early not only to forge that relationship so you really have you know the old it takes a village to get these people to christ right well thank you future thank you so much for watching this edition of pro se nation if you would like to be a guest on the show or you have an idea for a tom contact us through the website