Mending Fences
GUEST: Attorney William Hickey on Divorce Mediation v. Litigation Myths
Join us on Mending Fences as we talk to Attorney William Hickey, a seasoned family law litigator from Massachusetts. Together, we untangle the often-confusing world of divorce, focusing on the distinctions between mediation and litigation. Bill shares his expert insights on how he evaluates the suitability of mediation for his clients, highlighting crucial factors like the intricacy of the issues and the couple's communication dynamics. We also delve into the significance of fairness and client value when recommending dispute resolution methods.
We break down the essential steps for choosing a qualified mediator, ensuring you’re equipped with the right questions to ask. Learn about the importance of mediators being involved in professional communities and the need to clearly understand the boundaries of the the neutral's role. Because mediators can't give legal advice, having access to independent counsel is vital. Through practical examples, we clarify the mediator’s role and underscore the necessity of grounding mediation in sound legal advice for a more balanced process.
We also discuss the value of a collaborative role for attorneys in mediation. Whether both clients have legal representation or only one does, we discuss how attorneys can bring balance and informed decision-making to the table. We also touch upon critical moments when mediators should refer clients to litigators, acknowledging that some conflicts are best resolved through litigation. Tune in for an insightful discussion on navigating divorce with the right mix of mediation and litigation, tailored to meet your unique needs.
Join us on Mending Fences as we talk to Attorney William Hickey, a seasoned family law litigator from Massachusetts. Together, we untangle the often-confusing world of divorce, focusing on the distinctions between mediation and litigation. Bill shares his expert insights on how he evaluates the suitability of mediation for his clients, highlighting crucial factors like the intricacy of the issues and the couple's communication dynamics. We also delve into the significance of fairness and client value when recommending dispute resolution methods.
We break down the essential steps for choosing a qualified mediator, ensuring you’re equipped with the right questions to ask. Learn about the importance of mediators being involved in professional communities and the need to clearly understand the boundaries of the the neutral's role. Because mediators can't give legal advice, having access to independent counsel is vital. Through practical examples, we clarify the mediator’s role and underscore the necessity of grounding mediation in sound legal advice for a more balanced process.
We also discuss the value of a collaborative role for attorneys in mediation. Whether both clients have legal representation or only one does, we discuss how attorneys can bring balance and informed decision-making to the table. We also touch upon critical moments when mediators should refer clients to litigators, acknowledging that some conflicts are best resolved through litigation. Tune in for an insightful discussion on navigating divorce with the right mix of mediation and litigation, tailored to meet your unique needs.
Welcome to Mending Fences, a podcast about effective ways to communicate and live with differences. I'm Patrice Bremner and I'm Jen.
Speaker 2:Hawthorne. We're both family law mediators and collaborative law attorneys, but our conversations go well beyond family law. We explore the personal, interpersonal, legal and cultural impacts of conflict. We explore the personal, interpersonal, legal and cultural impact of conflict.
Speaker 1:Hi, welcome back to Mending Fences. I'm Patrice Bremner and I'm here today with Jen Hawthorne Kelsey, as usual. Hi, Patrice, Hi Jen, and we have a really special guest today Attorney William Hickey is joining us today.
Speaker 3:Bill, can I call you Bill?
Speaker 1:Absolutely Okay. Bill's a family law litigator here in Massachusetts and he's going to sit down with us today to talk about some misconceptions or maybe not misconceptions about mediation from a litigator's perspective and maybe some misconceptions that Jen and I might have about litigation, and we'll go through kind of topic by topic about what his view is of mediation and when he might recommend it or not, and what his questions are. Bill, why don't you tell us a little bit about your background? Sure, thank you.
Speaker 3:I've been practicing law in Massachusetts for 19 years, thank you. I've been practicing law in Massachusetts for 19 years, primarily due litigation, mostly divorce, criminal defense and some civil litigation, and I feel like the last couple of years divorce has backed up and I see a lot of agreements for modifications that were mediated, or I feel like I've been getting a lot of clients where mediation had fallen apart. So I've wanted this opportunity to talk to some mediators and get educated.
Speaker 1:We're really glad that you have. I think we welcome an open conversation about these things. So the first thing I kind of wanted to bring out and we talked about this a little bit ahead of recording of how you see mediation in the spectrum of like process choices and something jen and I've talked a lot about over the years when you do an initial consultation, do you bring mediation up as an option for someone considering a divorce?
Speaker 3:I do quite regularly. As you know, in the practice of Massachusetts you have lawyers who want to do different things for clients. To put it lightly, I like to make sure I'm giving client value and the divorce that they want. I'm not just putting a show on for them, and some people come to me as litigator but when you start to talk to them you realize maybe something else is more appropriate. So I always feel it's a tough balance for me to sell myself to them as the litigator I am, but also really just be fair to them and tell them about other processes, especially if I think something that might be effective for them. So I usually say I draw their attention to what my understanding of mediation is.
Speaker 2:And some of them.
Speaker 3:I probably could have led with. Some of them will come in saying, oh, we talked about getting a mediator, and my red flag goes up because I feel like there's a misunderstanding for most lay people and a lot of lawyers of what mediation actually is. I try to tell them that, or what I typically say is it's something that's very narrow, you know. It has its place, but it's not for everyone, you know. So I kind of draw an image of it that it's a narrow thing that we do talk about in consultation. And I say narrow because I don't think it's for everyone. It takes a certain level of, you know, respect for each other, or level of communication, or just you know, just something I pick up on in the consultation, you know, and then I just sort of tell them something they may want to consider, but it's probably not what they think it is.
Speaker 1:So what I hear you saying is that not every divorcing couple are going to be good candidates for mediation and you have some idea about who would be good candidates and who wouldn't be, and that there's a narrow category of people who would be good candidates.
Speaker 3:Correct. Yeah, exactly that's why I say narrow, because it's not for everyone.
Speaker 1:Right, and so I'm curious, and this isn't the way I thought this conversation was going to go. I thought we were going to be answering questions as mediators, but I have a lot of questions for you. What's the criteria? Who would be good candidates for mediation?
Speaker 3:I kind of slipped in there. It's just kind of a feeling I get in the consultation so I'll do my best to try to make some of the things I observe. My consultations are long. I usually tell them to prepare for about 90 minutes, you know, just because the first 60, they're just you know you're meeting a stranger and you're asking them to tell you your life's. You know their life's big secrets and dirt and all that. So by the time I get to it I have a pretty good flavor of you know what's going on, kind of what went wrong and where they might be headed.
Speaker 3:So I don't necessarily have a checklist of what I would say is a good candidate for mediation. But people at one just don't have a lot of major issues. There isn't a family, a closely held business, there is not custody, major know, major custody issues. That would at least be the very broad stroke. You know something like that where I think you know, and usually people like you maybe not with a lot of resources they think they want to go litigate for two years and they think they get along worse than they do, and I think that that really is it.
Speaker 3:I think a lot of people when they come in and they're divorcing, and rightfully so. They think it's the worst time of their lives, because it probably is. But attorneys we've seen and mediators we've seen lots of people over the years and you realize that they don't realize how well they actually kind of communicate in spite of the tough time they're going through. And a lot of times I don't say that to them, I just think it and that kind of guides me into the conversation about mediation and why they may want to consider it.
Speaker 2:Yeah, it's really interesting as we're having this conversation because your go-to that mediation is narrow is exactly how I think about litigation, and so it's interesting that we're on opposite ends of how many people fit into each bucket. My approach, when I'm meeting with people for the first time whether I'm meeting with them, I offer a 15-minute call where I'm talking just about process. So I explain to them the 1A and the 1B process, that it's a spectrum of process choice. I and anyone who's listened to the podcast before has heard this, but I don't think you actually have Bill, so I'm sharing it again for that reason that I have, like the kitchen table divorce, where people are actually just talking to each other with no professionals, then mediation, then collaborative process, lawyer to lawyer, negotiation and then the 1B process and it's not quite as linear as it sounds because obviously you can file a 1B and go back to those out-of-court process choices.
Speaker 2:But from my perspective, especially if I'm only talking with one person, I'm always leery to think I have the big picture, and so it's really fascinating to me hearing your approach to it and how you're evaluating which cases might be a good fit for mediation. My approach is to tell people there's only a little bit. You can lose from trying mediation and failing. You lose whatever time you spent on mediation and whatever fees you paid to a mediator, but there's a lot of upside potentially in terms of getting to an agreement that really meets their needs. And so, again, it's just really interesting to me that we both went to law school. We both understand the law, we both know how to do this, we both work with lots and lots of families in different capacities and can have really different approaches to starting cases.
Speaker 3:Right, that's actually. I'm glad you brought that up, because that would be a good. This is somewhere where I made advice, because A lot of times when I have someone you know they've come to me, so they're already on a certain path. They've arrived at the litigator's office, we've had a conversation. I want to talk to them about mediation and other things. A way, okay, we can file a complaint, but we can hold the summons and try to convey to them and I think ineffectively, because it's not like I'm talking on both sides of my mouth, which is exactly what we don't want to do as lawyers. Okay, fine, you know we can start this litigation process, but I assure you I'm going to be mediation friendly or amicable, or something you know. Give them the divorce that they want, even though the process is filed, or something you know. Give them the divorce that they want even though the process is filed.
Speaker 3:It doesn't mean we have to go to war, yeah, so I think I struggle with how to say both those things and have them believe both. I do convince them that. Yeah sure, I'll try the case tomorrow, but I assure you I will do that if you want me to. I much rather, you know, reach out to the other side and see what we can talk about, and I guess I would ask for some guidance on how to you know language or, you know, use the right terms of how to do that.
Speaker 1:I want to answer that, but I also want to just as a point of clarification, because this might be confusing to some people. So Jen and I both have a practice of offering a 15-minute consultation. That's an initial consultation to talk about process choices, and that's really all we do. Bill, you're talking about an in-depth consultation as an initial consultation, and the reason is the reason that we can't offer that is because we are mediators, and so if after the process choice conversation, the client says, yeah, I think I am interested in learning more about mediation, I have to have them come back with their spouse. I have to remain neutral in that first conversation and you don't, so you have the benefit of not needing to maintain that neutrality. I'm just as a philosophical or a more existential question. I just wonder if how we engage at that initial level kind of colors the way we see the incoming information Because I'm listening to it in a different way than you are Does that make sense Totally.
Speaker 3:That's a great point. It's exactly. You know the practical aspect of it. You have to keep some neutrality, but from the litigation side I have to get rid of the neutrality, right, you're?
Speaker 1:listening, for I think you're listening for different information and I know like. So we have a spectrum here of experience. As Jen, as someone who doesn't have a litigation background, I was a litigator but I haven't litigated for some years now. Bill, you continue to actively litigate. There was a time in my practice as a litigator when I was not a huge fan of mediation because, like you, I was seeing the things that came into my office were the things that hadn't worked. It was mediations that hadn't worked or where people had hit that frustration, and I know that's a topic we're going to get to of like what the expectations should be. But I think that what your practice model has been, what your business model has been, what your approach has been, colors what you see as being appropriate for mediation or not.
Speaker 3:I agree.
Speaker 1:I also think it's a lack of not just people's misconception of what mediation or not, I agree.
Speaker 3:I also think it's a lack of not just people's misconception of what mediation is, but also on other lawyers. You know, I feel like I'm not out to besmirch any other practicing lawyers, but to me it feels like and I always use the example of wills I mean, could I draft a will? Because I'm an attorney? Absolutely Could I mediate a case? Probably, but should I do either? No, I haven't had the proper training, I don't have the experience, I don't have the, which is vastly different than attorneys that practice like you do and focus exclusively on this area, which is, in my experience, an entirely different skill set. So I think it's not just to lay people's misconception of what it means to mediate a case, but also other attorneys. They're trying to not point clients in that direction.
Speaker 1:This is the second topic that I think we had identified to talk about, and you've just brought it up perfectly that, like, not all mediators are the same right, and I don't think that's a misconception at all I think there's a vast range of differences from person to person who holds themselves out as a mediator.
Speaker 2:For sure, Agreed on so many different levels, from personal style to mediations, like actual style, like some folks who are mediators are more evaluative than others. Some are more facilitative. Some are meeting with clients primarily together. Some are meeting with clients primarily separately. Some mostly only mediate when there are lawyers involved. Others, like myself, like my, mediations often start with no lawyers actively involved in the process and if my clients have attorneys, they're sort of meeting with their attorneys separately in between mediation sessions or sometimes just at the end. And there's a whole spectrum of how much training various mediators have done and what percentage of their practice is mediation versus litigation.
Speaker 3:So part of the reason I have that long consultation with people is also to make sure and I say this in respect to clients is, even if you don't hire me, I want to make sure you have some idea of how the process works and you know what your next step is when you leave here, because a lot of times I meet with people and then just never hear from them again, like we all do, and yeah, that's a little frustrating, but you want to make sure you send them off.
Speaker 3:At least they know where to go. So and I do my best to try to stay with them until they're at that next spot if they're not hiring me. So how would you advise or like what are the questions that, as an attorney, you would tell a prospective client slash sort of client to ask a mediator when they're looking for someone you know, or if I'm just making a referral to another lawyer, what are the things I want to look for? To see the difference between you know the mediator that just adds it to the shingle versus the person that's committed to that practice.
Speaker 2:The first thing I look for because I do represent clients too, just in an out-of-court capacity, and often that means that I am sending them to somebody else as a mediator.
Speaker 2:So one of the things that, because I'm in that mediation community, I can look for is how involved they are in like the Mass Council of Family Mediators or the Massachusetts Collaborative Law Council, which is for collaborative law, but almost everyone is also trained as a mediator. The second thing I do if someone says, oh, so-and-so suggested this person as a mediator and it might not be someone that I know I look at their website. I look at how they are holding themselves out in the world publicly to see does it actually have that litigator feel or does it have that? I really want to help you get to the agreement that you want to have feel. I really want to help you get to the agreement that you want to have feel. And it's maybe not as easy for clients to pick that up, but there should be discussion of an out-of-court process on the front page of their website if they're really doing this routinely.
Speaker 1:It's not just like a word that's buried amongst modifications contempt, child support, that's what you know right.
Speaker 1:Mediation is like buried in there. So if it's yeah, if somebody is really steeped in this, in in in this process and has developed a mediation style, they'll be able to talk about it easily with clients and on their website about what their approach is and how they view this within a spectrum of process choices. But I think that what you're asking, bill, is also just like what are the concrete questions somebody can ask? And I think you can fairly ask a would-be mediator how will this process start? What do we start with? Where you know, ask concrete questions that they'll want to know, ask all those questions and see what kind of responses you get. And if somebody is saying, oh, it takes three sessions and it costs this much money, blah, blah, blah, blah, blah Like that might not be a good sign, like if people are overselling a process.
Speaker 2:My answer to that question, patrice, is almost always well, every single mediation looks a little different. I can give you some averages, but I can't make any guarantees in this initial meeting about how your mediation process is going to go. I'm just meeting you for the first time and questions that I get asked a lot are how many mediations do you do a year? What percentage of cases of yours are you the mediator? How many years have you been doing this? You know what is your practice as a whole look like. Those are a lot of the sort of questions that I get asked that people are looking for. That Like are you really a mediator or are you a lawyer in disguise, is how I would phrase that which I am a lawyer and I oddly don't get those questions, but I do get like how long will it take, how much will it cost?
Speaker 1:What happens if we can't agree on something? And I think the thing that people don't ask but they should ask is what's the role of the mediator in terms of making sure that the clients understand the law and hear what somebody says about that, because mediators in Massachusetts can't give legal advice and a mediator should be super upfront about that and be saying it at the very beginning and all through the process can't give you legal advice, but I certainly can tell you what the law says and what your range of options sort of are. What I've seen other people do, the kinds of things I've seen courts accept. I can say all of that, but I can't ever say here's what you should do or here's what's in your best interest.
Speaker 2:And I'll usually give an example when I'm asked that question. So I've been listening during the initial consults, you know. Do they have children? Are they older? What are my expectations? And I'll pick between child support or property division, depending on what I'm hearing is their biggest concern in terms of what legal information means. I don't give the full spiel that I'll give in a mediation, but I'll give them enough examples so that they understand the distinction of what questions I could answer and what questions I can't answer.
Speaker 1:I think another really good question, bill, is to ask mediators how they feel about having attorneys involved in the mediation process, because I have a strong my strong bias is that I think that lawyers should be a welcome addition to a mediation, that people should have access to independent counsel they're making big decisions and they're making lifelong decisions and that they should be really well informed about what their rights and obligations are going to be under that judgment. Moving forward, and Jen and I talk a lot about using mediation to reach really practical solutions, which is absolutely true, and I think mediation can and does more often create really practical solutions that people can live with and improve their communication moving forward, but they still have to have it grounded in good legal advice.
Speaker 2:It still has to be approved by a judge and they have to understand it. And so I totally agree with Patrice that lawyers are welcome and helpful. When people ask me you know what percentage of my cases have lawyers ebbs and flows over time, but a lot of people come to me. The contrast to starting with a litigator, they start with a mediator. It's often because they are afraid of attorneys and they think that attorneys are automatically going to escalate both the hostility and tension and the cost and tension and the cost.
Speaker 2:And I try really to explain to my clients that there are a lot of attorneys out there who are trained in mediation, who are going to look at their agreement and give them that legal opinion that they need in a way that I can't without intentionally or unintentionally escalating any of those things, because they're going to start with the question why? So you see an agreement coming out of mediation. From my perspective and I do this when I'm reviewing with clients who have hired me in a representation capacity is I see something that looks off or that looks very different than what I would expect or that I know is going to raise like a judge's red flag and say why is this like this Before I tell the client any of that, I say why? Why is this provision in here? How did you get here in mediation? Can you explain it to me so that I understand where you were coming from? And then we're going to talk about why I'm raising this particular question.
Speaker 3:If my category don't mind, I'll go back to Patrice's point about attorneys inside the mediation.
Speaker 3:Yeah, excuse me Sometimes that's a gray area as a litigator because you're talking to a client and them and their spouse have been thinking about mediation, thinking about mediation. So one of them is talking to a mediator and there's often and I've run into this recently with some confusion about are they hiring a mediator? And then I have my prospective client, slash client asking well, will you be involved in that? I guess where do you? You know there's no, it's not linear, like where do you sort of grab on and as a litigator to try to figure out what's happening? Sort of grab on and as a litigator to try to figure out what's happening. Is the client just in between deciding mediation and litigation, or should I be talking to the mediator to kind of figure out what my level of involvement is?
Speaker 2:Yeah, I think that is a really good question. So I like working in a team when that's possible. So if I know that my clients are represented both by attorneys and those attorneys want to have conversations with me and the clients say that that's okay, I think that's a great way to help clients get to a really practical, livable agreement that does mean that they're fully informed and that, I think, can provide comfort to everybody in the process. Where it's a little bit more complicated for me is if only one person hires an attorney, then it feels like it's compromising my neutrality if I have too many conversations with that person's attorney, because that person from my perspective already to the other person probably feels like they have a leg up anyway because they're getting that legal opinion that the other person's not getting. And there's a big question. There's so many different answers to why the other person didn't hire an attorney that aren't always Right To me Right.
Speaker 1:So there's a lot of different ways for attorneys to be helpful in mediated cases and it can be as simple as each client has access to their attorneys along the way. But they're coming back to the mediation sessions without their attorneys. But they're coming in with having been prepped right, having been prepped with their attorneys or having their questions answered. And maybe I never talked to the attorneys as a mediator, but they're there somewhere in the background helping their clients make their way through this process and at the end they're going to review whatever agreement I draft. It may be as simple as that.
Speaker 1:Sometimes I'll refer people out to attorneys.
Speaker 1:I'll say, okay, we've reached kind of an impasse Jen and I were just talking about this recently Like you'll reach a point where it's like things have stalled, we're not making progress and there's not really a dispute, but there's just a stall because they're not, you know, they're having a hard time discerning what's in their own best interest because they don't have access to legal advice for me, the way that they could get it from an attorney.
Speaker 1:So I'll say why don't you go talk to attorneys, hire attorneys, go talk to them, find out you know what's in your best interest and then come back and I'll facilitate the next conversation the attorneys might not come back with them. Having attorneys in mediation sessions is interesting because it really depends on what the attorney's background is, whether they're going to and, as Jen said, it's best if we can have a conversation as a team first to kind of set out what the ground rules will be about attorney engagement in the mediation session, whether they're going to be just observing or there to go into breakout rooms as needed to talk to their clients, or whether they're going to actually participate. But the hardest thing is what Jen just said when there's an attorney for one party and I've had mediations where there was an attorney for one party and there was an agreement that that attorney could attend mediation sessions because in that situation it was the spouse who had historically there was a power imbalance and that was the spouse that needed the support in the meeting.
Speaker 2:Yeah, listening to Patrice right now, I feel like maybe an example even of how mediations can evolve might be helpful, and it's one you and I have talked about, I think, on the podcast before, because it was a pretty big moment in time for Patrice and I in making lots of decisions, process choice. I had a mediation. This was many years ago, before the pandemic. I had a mediation that started in like the most traditional way where I was meeting with both clients without attorneys, and lots of things were happening in these particular clients' lives and Patrice was one of the attorneys representing one of the clients and that client asked in a mediation session I think I'm having a hard time understanding this Is it okay if my attorney attends the next mediation session? Other spouse said yes. So even though that person was represented, they didn't want their attorney there right away.
Speaker 2:So we did one meeting where Patrice attended and the other attorney didn't want their attorney there right away.
Speaker 2:So we did one meeting where Patrice attended and the other attorney didn't attend.
Speaker 2:At the end of that meeting the client said okay, I think the client that was not represented in the meeting said I think that I miscalculated, like how unbalanced that would feel if my spouse's attorney was there and mine wasn't, and so then he started bringing his attorney to the meetings, and both Patrice and the other attorney are collaboratively trained.
Speaker 2:So we evolved the process even more to where Patrice, the other attorney and I were talking before and after each meeting to make sure we were structuring the next agenda in a way that would be helpful for these clients. We ended up bringing in an expert on the parenting side of things to answer like one or two specific questions that these folks had, and we got them to the finish line in what could have easily devolved into a very contentious litigation, because it involved removal and a whole host of issues that were super complicated. But that's my view. Of mediation is that it's a process that has to be client centered, and so every single mediation I do looks a little different, even if they all start out pretty much the same of like the clients with me in the room, and so lawyers can be as involved or uninvolved as the clients want.
Speaker 1:Yeah, that would be. My point, bill, is that it's really up to the clients how much like it's up to the clients how much lawyers come into the room or not.
Speaker 3:What does that feel like as a media? When you talk about hitting that point of when you send them off to lawyers, is that a? How much do you get into with that, do you just? That must be scary to send them off into the world and not know who they're going to talk to. Do you give them names or yeah? You're obviously on the risk of people who you know. They have a family lawyer, they know someone and right, you kind of give it up, right? I?
Speaker 2:mean it does sometimes feel like rolling the dice in terms of what's going to happen after that if I don't have any idea who that attorney is. But that's less and less common, because very often the clients are asking me at least six attorneys, with the warning that they need to look at everyone's website, divvy up the list before either of them calls anybody and work it out that way so that they aren't inadvertently creating any conflicts of interest.
Speaker 3:What do you? I guess, what do you? You know, aside from being a trained mediator that litigates, that happens to litigate, what is it you hope for, that litigator, you know what can you tell them Like? What do you hope they hear from me who may or may not take the training someday, you know, when they come to my office?
Speaker 1:I'm honestly right. I mean just for clarity.
Speaker 3:I don't usually send people to litigators, unless, yeah, I almost never thought that you would send them, but just someone that you know okay, we finished mediation and someone I used to represent 10 years ago. They're not just going to call me first. So, as mediators, I guess that's my better question is you know? You know, when they go off to someone who don't know, you know what would you tell me to teach me? Invited me to how to address them and how to approach them. So I'm sort of continuing.
Speaker 1:Right and I think Jen said it earlier that like if you as you're reviewing the agreement, so if there's an agreement drafted and you're reviewing it post-mediation to take from this conversation Jen's suggestion that if you see something in the agreement that doesn't make sense to you or it just doesn't sit well with you, to first ask the client how did you arrive at this, why is this this way? And maybe there's a way to uphold the intent. But you need to change the language to get it past the judge or whatever, but to hear the why before you start saying this is this makes no sense. You know before you, you know what.
Speaker 2:I mean like so and as a mediator, let's say it's not a complete agreement yet. There's like I've been sending people to attorneys because there's something they're having a really hard time agreeing to and I have, you know, told them in legal information ways many different times, like different outcomes, but it's not clicking for them. Then what I try to do is either send them to attorneys with an email even if it's not to the lawyers, it's to the clients but with an email explaining the issue. That gives enough context so that, ideally, the attorneys working with them can clue into like where is my challenge? Like what am I seeing from them and what's going on here?
Speaker 2:Or, if there's already a draft agreement, I'll put a comment in the draft agreement that explains, like okay, this is what happened in their last mediation session. Here's the question that needs to be answered. To try to help with that, so that it's not completely just out of nowhere that they're showing up in your office saying we've been mediating for six months and we're not in an agreement yet, because I can understand completely why, as a litigator, you'd be like well, maybe that process isn't going to work then. So I always try to give the attorneys like something to work with okay.
Speaker 3:Yeah, I think that it reminds me of just something I did recently. Someone wanted to hire me to a quadro and looking at their agreement, some other issue came up and my client had just pointed it out to me and I, just just looking at it, I said this has to be a mistake. It was just I forget exactly what it was, but I'm like no trained lawyer trained lawyer would have gotten this right. It just has to be a typo. You know, why don't you just go? You know you paid them to do this. Why don't you go back to them? And you know, and I hearing that I mean is is that something media is generally open to? I mean, can I just pick up the phone? Or you know, there was that sort of well, you paid them to do it, have them go fix it and I, you know I'm regretting that. You know that I just kind of threw, you know, threw them back out. You know, punted it a little bit back to the mediator, when you know, maybe I should have just reached out.
Speaker 2:I think, either one is acceptable. The thing to be really clear on, like if I'm getting a comment back from one of my mediation clients saying my lawyer said you made a mistake.
Speaker 2:What would be super helpful is even if it's an email to them explaining the mistake, like, just in case it's a typo probably is going to be apparent when you see it a second time right, but just in case it's not, that to understand where the lawyer was coming from, so that I can figure out how to restart that. Like, did I just make a mistake? Was it something in their conversation that's maybe really different than what usually happens, and how can we make sure everyone's on the same page about moving forward with that?
Speaker 1:So I think this is highlighting and we've kind of come to the end of our time, I think is highlighting and we've kind of come to the end of our time, I think. But I think what we're highlighting is that a lot of misconceptions or trepidation about sending people to mediation might have to do with just a lack of communication between the two legal communities, right Of not knowing how to make use of the process or not knowing how to support somebody who's in mediation. And I totally understand that, because there are kind of these like unspoken barriers or lines. I don't think I would welcome emails or phone calls from attorneys as a mediator unless my client had you know, unless I knew it was coming like unless you know, or unless I knew that I was going to be talking to both lawyers or something. So so there are.
Speaker 1:I don't know, there are, just there are. There are. There's a lack of guideline. Yeah, so Bill does. How does this conversation sit with you now? Do you feel better informed or is? I don't know if that's the best way to say it, but no, it's it completes sort of the, the, the larger picture.
Speaker 3:right, you know, I think something Jen said, you know, when she was telling that story, about how the you know what could have been a complicated litigation you know started as one or two you know kind of it happened kind of almost, you know, organically or accidentally.
Speaker 2:Exactly it came in.
Speaker 3:And that really, you know, just you know, reminds me, you know, to remind us all it really is a. You know the process itself is bigger. You know we just deal with how you approach it, you know, whether it's litigation or the mediation. But you know, this conversation has helped to always see that bigger picture. You know, because you do, you do run into and I'm guilty of it too where you just you know someone comes in, you just you take the agreement and you don't look behind and ask the why question. You just don't. Okay, I'm starting over and I'm just going to start fresh from here, but you know that's not the best approach, that's not the best way to maybe get to, you know, keeping a client centered, what they really want to actually have happen and continue to happen. So I think that this has been helpful to make people look further back.
Speaker 1:And I think there's a really good follow-up conversation and I hope that you'll come back, bill, because I think that there's a corollary to this, which is you know, when should mediators be sending people to litigators and when should we be steering people towards away from out-of-court process choices? Because there certainly are times when people think they want mediation because it sounds like it's going to be easier, less expensive or whatever, but they have issues that absolutely need like. There are things you can get in litigation that you can't get anywhere else, and that's another conversation.
Speaker 2:I'd love to come back for it All right well, we'll do that, and so in the meantime we'll keep talking. We'll keep talking.