If you are considering divorce, you may have heard about mediation and wonder if it would be right for you. My guest today is Sharon Corsentino, a well-respected mediator. She has helped countless families find resolutions in the midst of divorce. Today, she’s going to share a few tips on getting ready for mediation, and tell us what to expect from the process.
- What is mediation?
- Why does mediation work so well?
- What else makes the mediation process so magical?
- What common characteristics do you see in cases where parties aren’t able to settle?
- What helps people prepare for mediation?
- Do people mediate in the same house at the same time, but in different rooms?
- How do you insulate and protect your client’s privacy?
- Have you seen a difference in the rate of settlement between in-person mediations versus zoom mediations?
- Do you get requests to mediate outside North Texas?
- What is the difference between being a lawyer and being a mediator?
- What can lawyers do to help prepare their client’s mediation?
- What do you tell people when they call you just looking to hire a mediator instead of a lawyer?
- Are there cases that are not suitable for mediation?
- What is your message of hope for somebody who’s in that divorce situation and can’t see a way out?
What Is Mediation?
Mediation is an alternative form of dispute resolution. A neutral person, known as the mediator, facilitates communication between parties to craft a resolution to their issues. Mediation is applicable in all forms of law, but I focus on family law, probate and guardianship and small civil matters. Mediation has widespread use and is a well-accepted technique. It’s a good alternative to fighting things out in the courtroom.
In fact, many courts in Texas actually require that parties at least attempt resolution through mediation before they even get into the courtroom.
Correct. Yes. It’s so successful, and the settlement rates are so high that the judges have come to appreciate mediation as a means of helping their document management. But it’s also about people realizing that they can settle their own disputes, and they don’t need a judge to bang the gavel and make orders that maybe nobody likes.
Some people feel like mediation is going to be pointless and a complete waste of money and resources. Because they have already tried to work it out with their spouse, and they don’t see eye to eye on divorce, they think, “so why would we go and spend time in mediation?”
Why Does Mediation Work So Well?
Often clients start out saying, “I don’t know why we’re here; we’re not going to settle.”. Then at the end of the day, when we’re signing the settlement agreement, it’s so gratifying. It’s just so reassuring that the mediation process works.
The key is having a neutral person there. I’m not there to take anybody’s side. I am not a judge who can make a decision or force someone to do something in a case. But I am a fly on the wall a lot of times.
Often people, because of trust or anger issues are not listening to one another. They’re actually, I frequently find, that they are saying or wanting the exact same thing. They’re just not using the same words, and are not phrasing it in such a way that the other side finds it appealing and acceptable. When the same suggestion comes from a mediator, it’s more innocuous. I can come in with a proposal, and we can work through it without them having to sit across the table from each other. All the tension and stress and microaggressions that might happen, whether it’s through facial expressions or whatever it might be.
That’s such a good point. It’s human nature, right? When you’ve been trying unsuccessfully to communicate with somebody, and then they suggest something, the answer is “No, I don’t want to do it because you’re suggesting it.” And so sometimes when we have a neutral party who says, “Hey, have you thought about this?” It looks completely different.
Absolutely. And sometimes, it’s because of people’s lack of terminology or because some people are visual and just using words isn’t enough. Sometimes in divorces, we’re talking about custody and possession schedules and things like that and one or other of the parties is just saying ‘no,’ to everything. Then, when we lay it out on a calendar and they can visualize what it looks like. It works for them, even though they’ve been completely opposed to it for months on end. Sometimes, it becomes more palatable if you slow down and just sort of break things down into pieces.
So I’m hearing that as the mediator you are able to propose solutions that people hear because it’s coming from a different neutral person. That’s interesting!
What else makes the mediation process so magical?
The idea is for mediation to be a safe space to discuss options. It’s a confidential process. I’m not going to be standing in front of the court at a later date to divulge what the person was willing to offer or wasn’t willing to accept. It a place to explore options that maybe they wouldn’t feel so comfortable doing in another setting. Because of that, people are more willing to open their minds and hearts and look at things a little more pragmatically, and think, “Maybe this isn’t so bad. But if we go to court, my gosh, I’m not going to be agreeing to that when we get to the courthouse” kind of things.
Exactly. And I think that there are good reasons for that. By the time you get to the courthouse, you’ve had to go through such an expensive process, maybe even taking depositions and discovery and the willingness of people to make agreements.
Once everybody becomes comfortable with the divorce mediation process, it becomes less obvious. But sometimes, in the beginning, people are worried about putting a proposal on the table and what the other side is going to think. And I always tell them, “It’s my job, you don’t need to worry about what’s happening in the other room or try to predict their next move and counter-proposal. Make an offer you’re comfortable with, and then it’s my job to go in the other room and try to narrow the issues and ‘sell it,”. Even though I’m not an advocate for that person, I present their proposal in a neutral form and see what agreements we can reach.
I know. Often we’ll go into mediation thinking possession time or child support or spousal support or whatever is going to be an issue, and then in working with the mediator, that turns out not to be an issue at all.
Yes, thankfully, many attorneys do advanced work and tell me what they believe the issues are going to be from their perspective. And sometimes that’s not where the issues are. They might turn out to be something else that wasn’t even on the radar. Sometimes things come up at the last minute because the other party hasn’t thought about it and considered, “Oh, this is an issue that we need to talk about today.”
What common characteristics do you see in cases where parties aren’t able to settle?
That’s a tough one; it’s kind of all over the map. Sometimes, when there are a limited number of issues, it’s almost harder to settle because there aren’t as many things that people can compromise on and negotiate. If the pie only has two pieces there are only so many ways that we can move it around. So, I think those are the tougher ones to resolve versus when we have a whole giant pie with multiple slices. We can mix it up in different ways and come up with creative options and ideas.
I always love the idea of expanding the pie, right? That is looking beyond just what we have, and you’re really good at that. You’re good at helping us see some other things that we need to throw into the conversation mix. So we talked a little bit about the people that are able to reach a resolution; I want to focus on some of those traits.
What helps people prepare for mediation?
I think that people who’ve done their homework ahead of time have a better chance to get their case resolved. Now, certainly, sometimes we’re doing homework on the fly in mediation. People have to go out and find some information while I’m in the other room working. But for the most part, I think if people understand what the potential options are. And, what the potential outcomes are. They become better prepared to negotiate and make compromises in mediation.
And so, for instance, if someone is resolute about wanting to keep the house, have the divorcing homeowners explored whether they can afford to? Have they made a budget? Have they contacted a mortgage banker to talk about what their options are, if they have to buy out the other party or if they qualify? Or is it going to be a manageable payment? All those things. I think the more homework people are doing in advance, the better they are. They need to evaluate their own needs and their own interests. Then they have a better opportunity to get it resolved in mediation.
That’s really good advice. One of the things we tell people, too, is to make sure they spend some time the day before, getting all the values updated. Usually, the discovery and all the documents are exchanged well in advance of the mediation so be prepared to provide us with the most up-to-date values.
Absolutely. Nothing’s worse than trying to remember your password on the fly while everybody’s staring at you. So, have ready access to information, whether it’s bank accounts, retirement accounts, or even the child’s school calendar. We don’t want to be looking up, “When is fall break? Is there a fall break? When is spring break?” to evaluate discussions in regards to possession schedules. But certainly on the financial side, have current balances ready, because most people don’t have a static bank account that just stays at the same balance all the time. They’re paying bills, and have things flowing in and out, and we need to work with updated information.
One of the things I know that people are anxious about when it comes to mediation is being in the room with their spouse for the whole day. And they’re always a little surprised to learn that that’s not how we do it. So I think it would be helpful if we kind of back up a little bit, and let’s talk about it.
Do people mediate in the same house at the same time, but in different rooms?
Other states more commonly have joint sessions. This is where people are really sitting across the table from one another and having these conversations. But, that’s not how we typically do it here in Texas. So generally, the parties are in separate conference rooms, and I shuttle in between. They may go the entire day and not see one another. Unless they accidentally meet up at the coffee pot or on the way to the restroom or something like that. And so I just shuttle back and forth, bringing the proposals back and forth. I think this lends to the comfort of not having to have those awkward conversations, not having to reveal all your cards, right in front of the other party.
Also, online, since for the past two years we’ve been on Zoom, they have breakout rooms. So I’m able to set up virtual conference rooms for each side. One thing I have been doing a little bit differently in the Zoom forum is that I’ve been bringing people in at the very beginning to do a joint session to explain my process, my procedures, what to expect from me and some technology tips and things like that, but we don’t discuss anything case-specific when we’re in that joint session.
People can be really tense when they’re in front of the other side and the opposing attorney. Lawyers tend to make people a little tense. So, being in separate rooms allows you to move into the creative thinking space, the problem-solving part of our brains.
Yes, definitely. An unexpected benefit of Zoom is that a lot of people find comfort in being at home in their living room with their dog or their cat and in their pajamas. It’s just a coziness factor where they’re more comfortable talking about things. There are more benefits to being online than in person, both benefits and disadvantages. But overall, I would say it’s working.
Do People Mediate In The Same House At The Same Time, But Maybe In Different Bedrooms?
Occasionally. That hasn’t been happening as frequently. At the beginning of COVID certainly, we saw that a little more often, and I always felt awkward about it, even though I had them in separate breakout rooms. I mean, being within the same household without me there shuttling in between seemed unusual. But I don’t see that happening as frequently now.
We’ve talked about that what happens in mediation is protected. Of course, when we talk about Zoom, I think of the Zoom hearings that have been broadcast on YouTube, which is the total opposite. And even if it’s not being broadcast on YouTube, hearings are public forums. I mean, anybody can walk in and listen to the trial and all the things going on.
How do you insulate and protect your client’s privacy?
Certainly, I don’t permit anyone to record the mediation. It’s in my rules, I actually have it in my name at the bottom of my screen, not to record, and I don’t record any of the sessions. And I have my security features set up in Zoom, so none of these chat screens are saved or anything like that. Certainly, I can’t prevent it a hundred percent because if somebody wanted to record something by another device, I suppose that could happen. But really, they would only be recording themselves because once I’m meeting in a breakout room, only the person in the breakout room can see or hear what’s being said or done. So there’s really no benefit to recording it.
Is there a difference in the rate of settlement between in-person mediations versus zoom mediations?
I haven’t seen a decrease in settlement rates, nor have I seen an increase. It’s stayed about the same. It’s been pretty remarkable how people have just pivoted and act like we’ve been doing it this way all along. But it’s been working, and even as mandates and things relax a bit, I’m not seeing people wanting to go back to in-person. I think everybody has adapted so well.
You’re one of the best mediators in our area, and we’re so lucky to have you in North Texas.
Do you get requests to mediate outside North Texas?
When I’m in-person, obviously, I only have time to travel so far in a day for mediation, but now I’ve been picking up cases out of the Panhandle in West Texas and down in Central Texas. It’s been nice; it’s been fun to meet new lawyers and new people.
That’s great. I want to shift a little bit and just talk about you personally, about your growth into mediation. I first met you when we were young family lawyers starting off. And I know you did family law practice for a number of years and eventually changed into doing mediation full time.
What is the difference between being a lawyer and being a mediator?
I tell people all the time, “I’m the accidental family law attorney,” because when I went to law school, I never expected to practice family law. It was not even on my radar. I wanted to do something more transactional, and I had my sights on that. And when I graduated from law school, it was a function of the economy, I needed a job, and a family law position came along, and I took it, and it turns out I really loved it. I loved working with people. I loved being creative. And, trying to come up with solutions to get their case resolved. And, just assist them through a really difficult part of their lives and make it as painless as I could.
And so, of course, early on in my practice, I began attending mediation with clients and representing clients in mediation. And I fell in love with the process because I think that, unfortunately, family law is just not well suited for the courtroom. It is by necessity, but not by design. People were feeling a bit disenchanted of taking their case all the way to the courthouse and coming out with a resolution that maybe didn’t fit their family. And so I felt like in mediation, we were able to be more thoughtful about it than just litigation scorched-earth and come out with whatever you come out with from the courtroom. Then along with being introduced to mediation, I was also introduced to collaborative law. That’s really when you and I first met; it was in the collaborative law field.
I enjoyed practicing collaborative law. I like the concept of the team approach of trying to get cases resolved and letting families decide what works best for them. And so, as I began to sort of evaluate the next steps that I wanted to take in my career, I just kept coming back to mediation, of how much I loved it and how much I really wanted to focus a part of my practice on it. And decided in 2016 to just take the somewhat radical step, I suppose, of quitting litigation a hundred percent and focusing solely on mediation. So I’m now going into my sixth year, and there’s just been no looking back.
What can lawyers do to help prepare their client’s mediation?
Lawyers can help prepare their clients for mediation by setting expectations. Making sure that people understand their finances, their work schedule limitations, and things like that when they’re evaluating possession schedules. As well as give them an overall understanding of the components that are going to need to go into a mediated settlement agreement.
Whether it’s the attorney preparing the party for all of that or whether it’s another professional, it’s really useful to have those conversations ahead of time. There are many people out there who haven’t ever put together a budget, haven’t checked their credit in a long time, and haven’t really looked and read through a possession schedule. And so, putting those tools in their toolbox ahead of time, to begin considering what their options are, I think is very helpful.
I think that’s great advice. It really helps empower the people sitting there needing to make the decisions if they have thought through and considered the consequences. It’s one thing to say you want a 50-50 parenting schedule, but if you’re traveling all the time, it may not be realistic, and there may be other options to look at.
Right. And even if they’re not traveling all the time, are they a medical professional who has to be at work at 6:00 AM? Are they a firefighter who has this three days on, two days off schedule? So there are a lot of things to think about and how you can craft that to work versus just applying a standard possession order.
Certainly, these things can work even with crazy schedules, but you need to know what your backup plans are. And if you have those plans already worked out, it’s certainly a different conversation.
Definitely. And I think from a childcare perspective thinking about timings and exchange, like “when are we picking up and dropping off our child?” ahead of time would be good on mediation day.
What do you tell people when they call you just looking to hire a mediator instead of a lawyer?
It’s a common misconception that I can wear both hats because I am an attorney and I am a mediator. In Texas, you don’t have to be both. There are mediators out there who are not licensed attorneys. So I think a lot of people reach out to me thinking that I can wear both hats, that I can effectively help them resolve their case, and then turn around and change hats and draft all of the legal documents for them. But ethically, we’re not permitted to do so. So if I’m serving as the mediator, I am only serving as the mediator. The only document that I can draft for people is the mediated settlement agreement. And otherwise, I strongly encourage them to hire an attorney to draft their final decree of divorce and any of the ancillary documents that need to be done.
But when people reach out to me saying, “We’re filing for divorce, and we need to come to mediation,” typically I ask them what type of agreements they’ve already reached? I mean, I’m getting a nutshell version. But sometimes people tell me, “Oh, we’ve sat down at the kitchen table and we’ve figured it all out. We just need somebody to paper it.” And I’ll tell them, “Well, that’s not my role.” And then it typically leads into the conversation of, “We don’t need you as a mediator, let’s just have you serve as an attorney.” But I made the decision when I switched to my mediation practice that I was not going to take any legal cases anymore, representing individuals.
So for people who are in agreement on everything, mediation isn’t an expense they need to incur? What they need to do is just hire a lawyer; at least one of them could hire a lawyer to draft the documents.
Right, absolutely. I tend to tell them, “Congratulations, you don’t need me. You’re ahead of the game; you don’t need me to get involved unless you run into a dispute.” I always tell people it’s not out of the realm of possibility that maybe there’s something that needs to be incorporated into your legal documents that you all haven’t considered, and maybe you will need a mediator at some point, but hopefully not. And, I think that there’s just a general misconception out there that it’s a way to save money and that it’s a way to just avoid the legal process.
The confusion really is the idea that the two of you can hire one lawyer to prepare the paperwork, and our ethics just don’t allow that. And so, a mediator is not the one lawyer that both of you can hire. One of you can hire a lawyer and work through that lawyer to draft the documents, but that lawyer will be representing one party. And so oftentimes, it makes sense that they need to have their own lawyers, but there are certainly lawyers who are committed to helping people find resolution and not drum up the conflict.
Are there cases that are not suitable for mediation?
Well, certainly, if there are cases that involve family violence and if there’s an active protective order, we have to consider the safety and the overall position of each party. It doesn’t mean that we can’t mediate those types of cases, but definitely, we want to make sure that the proper safety parameters are in place and that it’s not being used unwittingly as a tool to just further inflict harm on a party. Otherwise, I think all cases are suited for mediation. Like I said, even cases involving family violence are not barred from coming to mediation; you just have to evaluate what safety parameters have to be in place.
Exactly. The safety of the parties involved is always paramount, but I always think in the back of my head that litigation is not necessarily a safe place for people involved in a case with family violence either.
No, it’s not. I mean, you’re going to a public place. You’re airing all of the secrets and private things that have happened in your family, which makes people very vulnerable in and of itself. And then, if you have the added family violence component, I mean, that’s very harmful.
What is your message of hope for somebody who’s in that divorce situation and can’t see a way out?
I think people have to be open-minded and optimistic. Most of all, they need to be patient. Because many times when people have decided that they need to get a divorce, they want it over yesterday. They’re ripping off the band-aid and are ready to move forward. It can, unfortunately, be a really slow process. So I think people just need to be patient; they need to stay optimistic. They need to recognize that there are things like mediation. And, other types of alternative dispute resolution that they can use to their advantage. They can try to resolve their case in a way that works for them. And so, exploring those opportunities and being open-minded to the process helps tremendously.
Great words. Thank you so much, Sharon Corsentino. If you want to learn more please visit Sharon Corsentino Mediations.