12. How to Never Come Into Mediation Unprepared Again [STORIES]

Don't go into mediation unprepared and have to live with a result you're unhappy with. Matthew Brickman and Sydney Mitchell discuss the formula for going into mediation confident, prepared and ready to negotiate your way to a peaceful resolution.

Their advice will help you deal with:
• Divorce (contested/uncontested with/without children, property, assets, debts)
• Parental Rights
• Paternity Cases and Rights
• Parenting
• Child Custody (Timesharing)
• Alimony and Spousal Support
• Child Support and Arrears
• Document Assistance
• Visitation
• Prenuptial & Postnuptial Agreements
• Post-judgement Modifications
• Family Disputes
• Business & Contract Disputes
• Employment: Employer/Employee Disputes
• Real Estate: Landlord - Tenant Disputes
• In-person Mediation
• Online Virtual Mediation

If you have a matter, disagreement, or dispute you need professional help with then visit iMediate.com - Email mbrickman@ichatmediation or Call (877) 822-1479

SCHEDULE YOUR MEDIATION: https://ichatmediation.com/calendar/
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ABOUT MATTHEW BRICKMAN:
Matthew Brickman is a Supreme Court of Florida certified county civil family mediator who has worked in the 15th and 19th Judicial Circuit Courts since 2009 and 2006 respectively. He is also an appellate certified mediator who mediates a variety of small claims, civil, and family cases. Mr. Brickman recently graduated both the Harvard Business School Negotiation Mastery Program and the Negotiation Master Class at Harvard Law School.

Transcript

Mediate This!: 0:00

Hi, my name is Sydney Mitchell. Hi, I'm Matthew Brickman, Florida Supreme court mediator. Welcome to the Mediate This! Podcast, where we discuss everything mediation and conflict resolution.

Sydney Mitchell: 0:13

Hello, everybody. Welcome to Mediate This! In our previous episode, Matthew and I discussed a little bit about how he prepares for mediation, but today we're going to discuss how you, the party should prepare before coming to mediation, because this is in fact, your day and your operation. You need to take control of your own. Like the day has come, where you can come to a place to find hope and peace, save thousands of dollars in legal fees, and it set an entirely new tone for your family and for generations to come. So Matthew start us on this journey. How should a parent or spouse prepare for mediation before they come to see you

Matthew Brickman: 0:52

Sydney? Um, let's start at the beginning cause that's a good place to start, right? So the only people that are allowed to be in mediation are the parties. And if they have attorneys, well then of course their attorneys, unless, and this is the only exception, unless the two parties agree that a third party can join. So I've had mediations where family members or even current spouses or significant others have been approved to be in the session.

Sydney Mitchell: 1:19

The last time that we talked, you read to us your opening statement. And do you discuss a little bit about how the entire mediation process is completely private, completely confidential? Does having other people in the room. Now, granted, you said that both parties have agreed to have these additional people in the room, but does that ever cloud the waters in regards to the confidentiality of what you guys discussed?

Matthew Brickman: 1:41

Well, if the parties agree that the additional people can be in mediation, then every person is then bound by the rules of confidentiality.

Sydney Mitchell: 1:50

Wondering if I were you, I would be wondering, can I trust these people? You know, because you don't know them,

Matthew Brickman: 1:58

You know, I don't know the parties either, usually, you know, unless it's their second or third mediation. I mean, I don't know the parties either, so yeah. I don't know the third, I don't know the third party, so you're right. You're right.

Sydney Mitchell: 2:07

Is there an approval process before the mediation or is it just, they both approve and they just show up?

Matthew Brickman: 2:14

Well, rarely, you know, rarely do people ask prior. Usually they'll just show up and then say, uh, Hey, my, uh brother's with me and my girlfriend. Yeah. The day of, so then, you know, my job is to ask everybody if they mind and if so, then they're approved. Sometimes it's an adamant. No, they're like, absolutely not, not allowed sometimes. You know, it's more polite. It's as simple as well, you know, I'm sorry. You know, they can't be part of it. I didn't know. Otherwise I would have brought my spouse or my significant other, you know, so sometimes they approve and have no issue.

Sydney Mitchell: 2:50

I recommend that parties have anybody additional in the room. Is that, is it a good idea? Is it a bad idea?

Matthew Brickman: 2:57

Well, okay. So, you know, I know that you love stories and yeah, well, you know, you and I keep talking, we're going to have a Storytime episode coming up where we're just gonna talk about some crazy stories, but you know, sometimes Sydney, the easiest way to explain something is to tell you a story. So I'll give you an example. Okay. Of when it might be a good idea. So I had a mediation where the mom and dad, okay. So it's a paternity mom and dad never married and they had a child. And in future episodes, we're, weren't talking about the difference between paternity and divorce. But this was where we had two people, never married, had a child, both of the parties had issues co-parenting and the mom and dad ended up getting married to other people. So it starts getting a little complicated, right? So now they come back to me for a modification and they asked if they could have their spouses involved. And they actually asked prior, they asked to be an email when we set this up. Um, so, you know, we had talked it over with everyone. Um, and when they showed up, then we made, I made a judgment call and I said that, okay, fine. If the two spouses start to get in the way that I'm going to kick them out, because I have the authority to do that, you know, I mean, look, if two people are going to be in the room and they're going to be helpful, great, not a problem. But sometimes the additional parties can actually be the voice of reason because the people that are negotiating are emotionally involved because, you know, they're the two people in conflict. And so when setting up a new time sharing plan, um, since the spouses will be actively involved with, you know, issues of transporting the children to in front of school activities, um, of course they're going to be present during timesharing and holidays and such, then, you know, it's a good idea to get every single involved party on the same page with all the rules. So there's no misunderstanding. So, you know, it can be helpful. Um, and especially, especially rather than like, let's say, for example, that mom and dad come and then they're, and they don't have their spouses and now they're going to go home. Well, you know that dad's going to tell his wife, whatever his interpretation of mediation was. And the same with mom is going to tell her new husband, right. Well, what happened? It's much easier if everybody gets it at the same time and they're involved in the process.

Sydney Mitchell: 5:26

Well, that's what I was going to say. You know, there's, you know, the mom and dad, they are, you know, where they married and said, says they were not married. They're not married. Well, regardless, they each got married to different people. You know, like you said, for holidays, transportation, things like that, those parents are very closely involved, you know, in, in that parenting plan. So that completely makes sense. Has there ever been a time where, whether you have a story or just whatever, like have you ever had a time where it was not a good idea or are there any circumstances under which you really don't advise additional people being pressed?

Matthew Brickman: 6:00

Okay. So yes, I have a story. I always have a story to Sydney. So I had a mediation, you know, I mean, everything's going to be like, okay, so I had a mediation. Okay. So I had a mediation, like there's always going to be that story. I had a mediation where the new wife. Okay. So the new wife hated the former wife and she was more aggressive and hateful to the husband then towards his ex, like, it was crazy. Like there was just more hatred there. And so I ended up kicking her out of the mediation because she was so passive aggressive, she would say, no, no, no. She just obstructed every single idea and suggestion, even though her husband was on board with the ideas going here, you know what, that's a pretty good idea. She kept inserting herself simply because she hated the ex wife and, and, you know, just because her husband was in agreement with the ex wife, well, then she had to say, no, it was a bad idea. And so, um, I ended up kicking her out, you know, because, you know, she was in the way of the two people that are negotiating. She was in the way and obstructing a deal.

Sydney Mitchell: 7:12

How are you? I just would imagine you're, you're, you know, you're the neutral third party. I just would imagine. It would be so challenging managing all of these different family dynamics and all of the drama. Like how do you keep everybody moving in the same direction when, you know, you might have somebody present that just, you know, for lack of better word to making everything more different.

Matthew Brickman: 7:34

Well, so, so I would say probably the, I mean, for me, the way that I can help keep people on track, I'm using my template for mediation. And so by having, if I'm sitting there with a blank piece of paper, try, you know, asking people, okay, what do you want your agreement to say, then? You know what, yeah. I mean, we can be all over the board with all the different personalities and all the different opinions, all the different everything. But being that I have a structured set of questions. Like we have to go through and complete this parenting plan. We have to go through and complete this paternity agreement. We have to go through and create this marital settlement agreement that helps me keep everybody on track. When the emotions want to, you know, take everything and distract you off of the subject. You're able to constantly bring it back because I've got a clear path of where we need to go, whether it's the parties or whether it's the parties and their third parties that they have brought into the mediation. And so by having that clear path, that helps me just know, okay, we need to keep moving this thing along, because otherwise if I'm sitting there with a blank piece of paper, trying to figure out, okay, what do we want to deal with? What do we want to say? It's, it's, it's chaos, you know, it'll be total chaos.

Sydney Mitchell: 8:59

Well, you've told me stories about mediations that you've had that have just lasted, I mean, literally all day. And is it, is it mostly like, you know, those days that you share with me how to eight hour day I had a nine hour day? Like, is that, is that oftentimes because of situations like this or, you know, can you attribute some of that too?

Matthew Brickman: 9:17

No, no. I mean, a lot of, a lot of those are not the third parties who are getting in the way. Um, a lot of times that is the parties they get in their own way and they just get stuck. And so you've gotta, you know, keep moving to, you know, maybe you jump a subject, you come back to a subject. Um, sometimes it can be the fact that we're in separate rooms. And so that's certainly go, that is simply going to take twice as long, because I just have to keep repeating things. I have to go and talk to the wife and then I have to go and tell the husband what the wife said. And then I have to go back and tell the why the husband, what the wives had back and forth. And that, that definitely adds to it. And so, you know, what can the parties do prior is, you know, they can maybe have some conversations prior so that when they come to mediation, everything is in a brand new, fresh conversation. So

Sydney Mitchell: 10:10

That totally makes sense. All right. I, sorry, I asked a couple of questions that kind of deviated from, from the point of this episode, which is the preparation process for mediation. So we're going to get back to that. Um, what else we talked a little bit about, um, you know, having another party in, in the room and, and preparing that way, but what else can somebody do to prepare before coming to mediation?

Matthew Brickman: 10:31

Well, when, when the mediation gets scheduled, I send out a letter of confirmation that lists all the possible documents that might help in order to settle the pending issues.

Sydney Mitchell: 10:43

What type of documents is that typically? Is it the same for every, every mediation?

Matthew Brickman: 10:50

So, so I have a standard form letter that I have created that I send out, um, and it lists various documents. And of course it says in there if applicable, because you know, it may not be applicable for this particular case, for example, um, one of the, one of the items on the list is an appraisal of a home. Well, if it's a paternity action and they never owned a home together and they're married and there's not equity distribution, then that doesn't matter. But the first, the first most important document that I absolutely have to have in that the court requires is a financial asset affidavit. Um, and the financial affidavit, basically the way I explained it to the parties is it's an exercise in reality. Uh, basically it's, uh, it's like a budget form and everybody has to complete those when they file, whether it's a fraternity action or divorced, you have to file it. And that lists the assets that list the income, it lists their expenses, all their belongings, their debts. Um, it's just, it's an essential required document. Now, the documents that I listed in my letter of confirmation, well, those are all the documents that you would normally use in order to create a financial affidavit. Those are all the supporting documents. Um, so that would be, you know, like your personal tax return or business tax return, a pay stubs, a bank and retirement account records, medical insurance information. Um, if there's kids involved in their, you know, young kids, you know, what are the costs for daycare, aftercare, summer school or summer camp, um, school tuition costs. It depends if it's a private school, if the parties agreed to it, um, um, proof of child support or alimony payments being paid in another action. So if someone was already divorced in his has a previous child support or alimony payment, what are those? Because those get factored in, um, also credit card statements, loan documents for like cars, boats, homes, um, you know, all of those types of documents. Those the parties are going to have to get anyway in order to fill out their financial affidavit. And so those need to come to mediation or the parties need to have access to them for mediation in case the other party challenges the numbers on the financial affidavit.

Sydney Mitchell: 13:09

I was going to say, so the F and the word is affidavit affidavit. So is that, so that's something that they bring documentations for in order to fill out, is that correct?

Matthew Brickman: 13:21

Well, hopefully they've filled it out prior to mediation. Sometimes they can either fill it out online or they can print it and hand fill it out. But, but a lot of times people bring the financial affidavits to mediation already filled out, but you've got to have the supporting documents in case any of the numbers get challenged. So, and so they can bring a paper copy, or if they have a laptop, you know, um, they can access it and show it. Um, these days, most people have electronic copies and they've either already produced them to the attorneys. Um, like I, I had a mediation today, um, where the attorney had sent me two days ago, the financial affidavit. So when we were in mediation talking about the assets in the home and the retirement accounts, I actually already had them and had looked at them. Um, and so I already knew, you know, what we were dealing with. Um, you know, sometimes, sometimes, you know, the parties will email them to me prior to mediation, or they'll just bring a laptop or their phone and just log in and then, you know, show it to me or show it to the other party in mediation.

Sydney Mitchell: 14:34

I would imagine that all of this documentation, that it just is so much to gather. I mean, you, I mean, you talked about such a broad range of different things that people have to bring. Um, when you went through your divorce, was this like an emotionally and taxing process for you to like gather all of these different things? I just hearing about it for the first time. It seems like very overwhelming. If I'm being honest, um, how did you, how did you manage all this? You know, because you've, you've been here, you've done all of this. So it was it like, you know, being on the other end of this as, um, as somebody going through mediation and preparing,

Matthew Brickman: 15:13

Um, you know what, it's actually not that bad. Um, only because, you know, like, like for example, Sydney, if I said, Hey, I need all your financial documents. Well, that seems overwhelming because that can be anything from, I need a bank statement to, you need to appraise your home. I mean, there's a huge spectrum in there. So that's why I send out my letter of confirmation that actually gives a list of most of the required documents that way. Um, you have a clear path, you know, okay, I know what my bank account is. Okay. I need to get on and download the last three months,

Sydney Mitchell: 15:49

Like a checklist of you need this, you need this.

Matthew Brickman: 15:52

Exactly. So it's not that overwhelming. Now, some things, some things may be a little difficult to get, you know, for example, uh, retirement values and stuff for certain accounts, just, you know, there's so many different types of retirement accounts. Um, sometimes you know, it, it could be a little difficult for example, to have a home appraised there's a cost included or associated with that to get your home appraised and look, you know, it's like, you may not want to appraise the home prior to mediation because, um, you may not know whether or not it's even necessary. Um, and so that's why sometimes it's good. If the parties can have a conversation prior, because for example, if you're not going to sell a home, and if everybody agrees on what is owed, cause you know, what's owed on the home and everybody agrees to what the, the value of the home is. Well, then you can save 400$5,500 by not having to get an appraisal. So maybe it is specific case to case. Um, and, and even with a financial affidavit, you know, depending on what the asks are in the case, um, depends on how detailed the financial apps affidavit has to be. So for example, I'll give you an example, and this is not, I had a mediation, but I'll give you an example. I'll give an example on a financial affidavit. Of course you have to list all of your assets and debt, right? But if it's a paternity action and you're not dividing up assets and debt, well, you don't need that. In fact, the only thing that you need for paternity action is income. We don't need to know your debts. We don't need to know your assets. We don't need to know what you spend your money on your expense. None of that we don't care. The only thing we need is your income. And so for a financial affidavit, a lot of times when I'm dealing with parties that do not have attorneys, is they may come to mediation without having that filled out. Okay. But they've got their supporting documents. They've got their pay stubs, they've got their tax returns. And then what we do on the rest of the financial affidavit is we work backwards.

Sydney Mitchell: 18:01

I was going to say, do you just fill it out on the spot together?

Matthew Brickman: 18:04

They do is like, for example, it may say, you know, what are your assets? And they just right across the entire box C mediation agreement because it's not applicable. And that way the court knows, Hey, we addressed it. We dealt with it, but it's not applicable. Go look at the mediation agreement in the mediation agreement. Then the judge sees its paternity agreement. It's not applicable. And so it still has to be filled out, but it can be filled out sort of backwards where we're were, you know, um, we're just saying, see the mediation agreement. Um, and then look, I've had divorces where the parties have said, we agree on division of everything, but do we need to list everything? And so for example, the, you know, the husband and wife may come in and say, look, we've agreed that she's going to keep the home. She's gonna pay me a hundred thousand dollars in a refi in 90 days. And we're just going to keep all of our debts in our own name and all of our assets on our own name. Well, great. We'll then on a financial affidavit, do they have to fill out every single line item for every bank account and how much is in that bank account in their car and how much is it worth and how much? No. So a lot of that prep work also is done either between me and the parties via email or on the telephone prior to mediation, or if they've got attorneys that the attorneys have already dealt with that prior as well.

Sydney Mitchell: 19:34

Okay. This is starting to make sense. It's like a big puzzle of all the different parts and pieces of things that you need. Okay. Outside of documentation, is there anything else that somebody needs to know before coming to mediation so that they can be completely prepared?

Matthew Brickman: 19:50

Okay. So, um, it is helpful if the parties come to mediation with a mindset. So this is not like you're gathering documents, you've already done that, but you come with the mindset to negotiate. Uh, now notice that I didn't say you come with the mindset to settle because they may or may not settle that day. You know, this is their day to decide, um, a lot of people do, but some, uh, some settle on that day and sometimes it may be weeks or even months after mediation, but prior to having the court decide the issues. So, you know, I mean, settlement can come at all different times and all different forms at different stages in the negotiation process, but they should at least come with the mindset to negotiate. Um, they need to come with an open mind where they are willing to listen and explore options, um, coming with a mindset to learn what they don't know. A lot of times in they're learning things that they didn't know, seen documents that they had assumptions on. And of course the more, you know, and learn the more power you have in order to negotiate a settlement that then you can live with and, you know, people love options. So if you come with a close mind, you're going to close off your options, come with an open mind, just to listen and then explore different options. It's going to be a better day. You'll have a better, much better chance of reaching a settlement or, you know, um, and coming to an agreement that you can live with

Sydney Mitchell: 21:24

When you, you know, as you were approaching mediation, did you come in with this, this mindset and attitude, you know, ready to negotiate? Or were you, was it fearful? Was it, I mean, what was, what were the emotions going on in your head and heart at this point?

Matthew Brickman: 21:39

Okay. So remember, remember one of the previous episodes we had talked about the game hungry, hungry hippo. Yes. Unfortunately, Sydney, that is most people's mindset. They come in afraid and they are grabbing as much as they can.

Sydney Mitchell: 21:51

They just pick what they can get and whatever they want.

Matthew Brickman: 21:54

Yeah. Um, I mean, it would be, and they're afraid. Um, a lot of it is afraid because they don't know what, I'm, what I'm telling you. Now. This is like ripping the curtain off to see the wizard, um, behind the scenes. Right. Because people don't know this type of information that you and I are talking about. And by not knowing then yes, you are closed off and you're fearful going into mediation. I didn't know. And I went in very afraid just trying to grab anything and everything I could grabbing things that I didn't even care about, just so I can say, I want right. Best in spite. It's like, okay, I won that. It's like, okay, what'd you win? I have no idea how to even know what I'm going to do with it, but I want it just because, you know, I was afraid. And so one of my motivations of this podcast is to give the knowledge and power to the people, give them information so that they know what to expect. And so they're not afraid of mediation or the negotiation process, you know, you're giving them the information that we gave them about, you know, the mindset of how should you view negotiation and conflict like we did in the previous episode, give them the tools of how do you negotiate and now starting to give them, okay, well, how do you prepare to negotiate? You know, now hopefully people will come in and powered. Um, I I'm gonna use the word excited, um, you know, excited to negotiate because it can be one of their best days on what seems to be maybe one of their darkest days. Um, you know, sometimes people come to mediation only because it's required by the court. So, you know, in order to get in front of judge, they have to come to mediation. They have no intention of settling or opening their mind, listening to options and taking control of their life.

Sydney Mitchell: 23:35

I was just going to ask, like you said that there are some people that have no intention of, I mean, why would you sh I just, I not crying yet. I haven't been married. I been through a divorce. I haven't, you know, been to mediation. How and why would somebody show up, spend all this money, you know, with their attorneys and the mediator, and not at least want to try to negotiate and settle upon an agreement.

Matthew Brickman: 24:01

Okay. So I have a story. I had this mediation where the mother and the father lived with one another for five years. Okay. So they just live together for a,

Sydney Mitchell: 24:14

So they weren't married. Okay.

Matthew Brickman: 24:16

I had two children from a previous marriage. Okay. This ended up the father, the father had had two children from a previous marriage.

Sydney Mitchell: 24:28

My mind is just like preparing to organize all of these details.

Matthew Brickman: 24:33

Okay. So mom and dad lived with each other for five years. Dad had two children from a previous marriage, and then this couple ended up having a child together. Okay. So dad's got two kids and now mom and dad have one kid together. They've now split up and the child is two years old. Their child is two years old. The mother and father have no jobs, neither have a rest records or criminal records so that, you know, they're not bad people, but mom is pissed because the dad had an affair now, totally understandable that she's passed right by. He cheated on her, but dad is now wanting 50 50 with his two year old kid. And by the way, just to back up the father who had the two kids from his previous marriage had full custody of his kids. Now, the reason why I use custody, cause we don't use that in Florida, but this was an order of another state that used the term custody. And his ex wife gave him both kids. Okay. This mother knew this because remember they lived together for five years, but she is now saying that he should not have any overnight time sharing with his two year old until she begins kindergarten. And the mother absolutely refuse to entertain anything except for what she wanted and stated that a judge would have to take her daughter from her and give overnight time sharing to the father. But she would never willingly give this child to her dad.

Sydney Mitchell: 26:06

Can she like do that? Like at some point that you don't get anywhere, right?

Matthew Brickman: 26:12

So she can certainly state her position. But in the end they went to court and not only did this particular judge give him overnight time sharing immediately, but gave him makeup time sharing since it took a while to get to court. And it went further, gave him majority time sharing. So remember we don't have primary custody in Florida, but the judge gave him 60% and her 40, not even equal in mediation, he was asking for equal in. He was asking for a majority because she appeared to the court to not be the parent who was willing to encourage the time and relationship. And so it completely backed up, fired on her. So you asked why would somebody come to mediation? At least not try to negotiate. Some people simply are not willing to open their mind, listen to options. And they actually tell me, a judge will have to force me and my, my job Cindy. And I I've told you this before. And my opening, my job is to empower the parties. And that means that I will tell them the good, the bad, the ugly I am that flashing yellow light that says warning, warning, warning in the event that you go to court, here's all the different possibilities. And so with this particular mother, I told her, just be aware that this might backfire, this is the power of the court. This is what they could do. You've been warned. And I tell people, I want you to know this because when things go sideways, not if, but when things go sideways in court, cause they always do. You will remember me giving you this warning and you will remember saying, I know, and I'm okay with that. And if that happens, I've done my job done my job. My job is to empower them. And that means give them all the information. And so Sydney, there are a lot of times when people just half, they, they, they have to have a judge tell them for whatever reason. I, I don't know what it is.

Sydney Mitchell: 28:14

Yeah. Well, and I think, you know, like we talked about mediation is a place where they can take control and you're the one that's helping with some creative solutions. And I think that's probably the most important thing that we've talked about. And honestly, even throughout depths of that, we've done, you know, as encouragement to somebody considering mediation, the biggest encouragement that that you've been able to give is to come in with an open mind and an open heart, of course, be ready to negotiate, but being committed to finding an agreement with somebody that you can live with. And I think doing so with a positive attitude, thank you, Matthew, for kind of walking us through. Okay. What does it look like to prepare for mediation and what people can do to make the process more efficient and a little bit simpler? And I'm looking forward to the next episode, when we talk a little bit about the differences between paternity and divorce. So listeners do not miss our next episode as we delve into some of those things,

Matthew Brickman: 29:03

Occasionally Sydney and I will be releasing Q&A bonus episodes where we will answer your questions and give you a personal shout out.

Sydney Mitchell: 29:11

If you have a comment or question regarding anything that we discuss, email us at info at chat, mediation.com that's info@ichatmediation.com and stay tuned to hear your shout out and have your question answered here on the show

Matthew Brickman: 29:28

For more information about my services or to schedule your mediation with me either in person or using my I chat mediation virtual platform built by Cisco communications. Visit me online at www.ichatmediation.com Call me at(561) 262-9121 toll free at(877) 822-1479. Or email me at mbrickman@ichatmediation.com.