Attorney Kelly Chang Rickert discuss the pros and cons of mediation over litigation in divorce proceedings, and the impact on the couple going forward.
Lawyer 2 Lawyer
Kelly Chang Rickert is founder of the Law and Mediation Offices of Kelly Chang, APLC, a law...
J. Craig Williams is admitted to practice law in Iowa, California, Massachusetts, and Washington. Before attending law...
Divorce can be a grueling process for couples. The days of standing in front of a judge are becoming less common. Instead mediation has become one of the most frequently used methods of negotiating a divorce settlement. On today’s Lawyer 2 Lawyer, host Craig Williams is joined by attorney Kelly Chang Rickert, founder of the Law and Mediation Offices of Kelly Chang, to turn the spotlight onto the divorce mediation movement. Together they explore the pros and cons of mediation over litigation in divorce proceedings, and the impact on the couple and their dependents going forward.
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Lawyer 2 Lawyer: Law News and Legal Topics
The Divorce Mediation Movement
Kelly Chang Rickert: When it gets really heated, you just need somebody to take you a step back and just tell you to take a deep breath and focus on the issue and if you can get past that emotional reaction, a lot of people can, then you can reach a settlement.
Intro: Welcome to the award-winning podcast, Lawyer 2 Lawyer, with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.
I write a legal blog named May It Please The Court, and have two books out, one titled ‘The Sled’ and the other titled, ‘How to Get Sued’.
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Well divorce can be a grueling process for couples. The days of standing in front of a judge are becoming less common, instead mediation has become one of the most frequently used methods of negotiating a divorce settlement.
On today’s Lawyer 2 Lawyer, we will turn our spotlight onto the divorce mediation movement. We will explore the pros and cons of mediation over litigation in divorce proceedings and the impact on the couple going forward.
To help us explore this topic we have a great guest for you today, my friend attorney Kelly Chang Rickert, who is the Founder of the Law and Mediation Offices of Kelly Chang, a professional corporation, a firm dedicated exclusively to family law.
Kelly also writes a popular blog, the Los Angeles Divorce and Family Lawyer Blog which can be found at divorcefamilylaw.blogspot.com, and welcome to the show Kelly.
Kelly Chang Rickert: Thank you so much Craig. It’s an honor to be here.
Kelly Chang Rickert: It was an accident. When I first started my firm, I like many solo practitioners took on any kind of case, and I started noticing that there is always volume in family law. Unlike corporations and insurance companies that have a lot of money, family law clients tend to be individuals going through a tough spot.
And so I realized like with my training and I guess my empathy level it was something that fit my personality. So very quickly after I started my own practice, I started focusing exclusively on family law.
Kelly Chang Rickert: So I think the biggest movement that came about during my 20 years of practice is the women’s movement. So historically there would be a stay-at-home housewife and one breadwinner, and I noticed over the years, I’ve had a lot of women now become the breadwinners. And so whereas before, there would be a lack of knowledge between the couples, between the husband and the wife, now almost every wife I represent knows more than the husband.
So it all has to do with the MeToo movement, but that’s one change I’ve seen. And the second change I’ve seen is now there is a big acceptance of this new movement of law called Collaborative. So a lot more attorneys are now amenable to practicing collaborative law, which I think is a much better choice in a divorce proceeding.
Kelly Chang Rickert: Think of a family is something that’s intact. So you have a family with children with bank accounts, everything is together. The division of this family a divorce causes a split. So resources are always finite in a divorce case and because not only are the assets split, your expenses double because now you’re living in two different households.
So I commonly tell my clients you start off with a quarter of what you had as an impact marriage. So unfortunately, it is the reality and nobody wins in divorce. I absolutely hate it when people come to me and they’re like we want to hire a pit bull and we want to win. I’m like you are already starting from a place of a quarter, there’s no way you can win 100%, you’re starting at 25%.
So the goal in handling a divorce case isn’t winning. The goal is trying to get through it with as little damage to the children and to your emotions and to your well-being as possible.
Kelly Chang Rickert: So DissoMaster is a program created by CFLR, it’s the company that, so there’s a Code section in the Family Code which codifies the algebraic formula for child support, and some awesome business took this algebraic code and ran a program, so now all we have to do is plug and chug.
And DissoMaster is how you calculate child support. It is also sometimes used to calculate spousal support, although typically under the code spousal support is not an algebraic formula, it’ just to be based on factors.
Kelly Chang Rickert: Well it’s garbage in garbage out. So a lot of people forget factors to input and so they get a garbage. So usually when you hire an attorney they’ll make sure that every single factor goes in such as mortgage deductions, health insurance premiums, it’s basically like having an accountant trying to find deductions. So whether you’re the payor or the recipient, whatever goes in really matters.
Kelly Chang Rickert: Okay, so let’s distinguish the difference between acting as an attorney and as a neutral mediator. So usually when people come to me for a consult already I cannot be their mediator. I can still talk them into mediation but I can’t be the mediator.
So usually when somebody calls my office and they inquire about mediation, they’ll talk to my staff who’s very knowledgeable and trained.
And so in order for them to use me as a mediator both sides have to agree, but yeah typically when one person calls and they consult with me after an hour I’m excluded from being a neutral mediator, because there’s a conflict now that exists.
So that aside I can still convince them to go to mediation, but I can’t be the mediator.
Kelly Chang Rickert: Number one you are in control. As if you are in mediation, you’re in control of your case, you’re not standing before a judge, you’re not risking being yelled at by this judge, you’re not risking winning or losing this one particular motion, you are in absolute control of the outcome. If you don’t like it, you don’t have to reach an agreement, you don’t have to sign. There is no loss until one of you has to go to court.
Kelly Chang Rickert: Everything can be handled and should be handled in mediation. The only problem I see is divorces extremely high emotions, and so a lot of people let their emotions override their common sense and that is a formula that will bankrupt you.
So I usually tell people let’s take the emotions aside and what are the issues. Once you can set aside your emotions you’re 99% there to settling your divorce case.
Kelly Chang Rickert: Yeah, unfortunately it is so. People are so angry, they don’t want to look at the issues, but a lot of times if people step away from their anger let’s say they focus on their kids, you’ll see that the couple actually have a common denominator which is their children. They might not be talking to each other but as soon as you talk about their kids they both light up like a Christmas tree, because everybody wants what’s best for their kids.
I really think that. There’s maybe 1% of the population that are just horrible, horrible people, but most people wants what’s best for their children, even if they hate their spouse.
Kelly Chang Rickert: My common tagline is marriage is grand, divorce a hundred grand. So I think right off the bat if you have a divorce which involves substantial assets maybe a business you have to evaluate, maybe a child custody evaluator, because you can’t agree on a parenting plan, right off the bat you’re looking at six figures, because you have to pay attorneys fees, expert fees, forensics fees, sometimes you have to get a vocational. So everybody gets paid, everybody gets paid out of your limited assets.
So the difference between litigating and you have to hire experts on both sides so you’re paying double and mediation where you’re using one neutral and you’re dividing the cost it’s exponential. You can settle a divorce case pretty easily if you’re using a mediator and you’re in control of everything.
Kelly Chang Rickert: I think it depends how many sessions you need and it also depends what kind of mediator you use. So typically with me, I would say you start with a retainer about 3,500, you can probably finish mediating the whole thing in under 10,000, maybe less and you divide this.
Kelly Chang Rickert: So we usually have ground rules and then they’ll start off by telling me what their concerns are, and after I have given both of them the platform to vent, we usually then discuss the issues. Usually, they’re really not that far off. If they are far off and there is kind of a kink in the system I will isolate them and that’s called caucuses. So I’ll talk to each one individually.
But pretty soon, there will be some movement and as long as there’s a common goal, which is that they want to avoid court because of the unknown then they can usually meet in the middle, and it’s a misnomer that you have to get along. I have many couples that sit in my conference room and that don’t talk to each other.
In fact I have one this morning and she ran out practically after with the case was settled. So you don’t absolutely have to get along, you can still be mad at the other person, I expect that. As long as you both agree to use me as a mediator, it could settle, I would say 90% of my cases settle.
Kelly Chang Rickert: I think so. A lot of times when you talk to them about their children they’ll both bring out their phones and they’ll start talking and reminiscing like this couple was fighting and then one person said well what do you think about her green hair and the other person laughed and said I don’t like it.
And that’s like one common denominator, because you’re both parents, if something god forbid happened to their child, they would be in the same boat.
Kelly Chang Rickert: That’s exactly right. That’s exactly right. One of my favorite private judges used to say, if the children are okay, nothing else matters. If the children aren’t okay, nothing else matters. That’s what he would say, and I think I agree with the whole thing. It doesn’t matter if you’re dividing a billion dollars if the children are not okay you work on the children first.
You make sure that the divorce doesn’t hit them and make them broken for lack of a better word.
Kelly Chang Rickert: A lot of it is common sense. We talk about how there’s this wise judge that I posted this blog very often but he writes about how the children were not a part of the decision to make each other the parent, and so you leave them out of it and every time you say something bad about the other parent, you’re saying something bad about half of that child, that’s not love, that’s possession.
So I usually include that article and we talk about it. I would say generally most people in mediation have already gone through the preambles and so they’re not as likely to say bad things about each other in front of the kids as those in litigation.
Kelly Chang Rickert: So I think in order to get yourself to a place of mediation you have to have some sort of reasonableness in place to begin with. So it already puts you in a better half of the population than the other half that will not mediate and that will want to go to court at all cost.
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There’s also an effect on the parents and people even outside the relationship. What advice do you give to parents about the relationships outside of the family?
Kelly Chang Rickert: So I usually provide a lot of resources on my blog that focus on healing and what to do if you’re in the middle of a divorce or when your divorce is entered. I provide that free of charge because I think it’s really important. A lot of people don’t understand that.
Lawyers are not necessarily trained to be mental health professionals, but it is kind of an indispensable part of the job, and so I do offer a load of information on my blog free of charge to anybody that wants to read it.
There’s a wonderful documentary out there called SPLIT by Ellen Bruno and she basically interviews children of divorced families and she does it and it’s very innocent and it actually makes me cry. I mean anybody who’s watched this would be able to testify that. It does make a huge impact for parents that are kind of nasty to each other and it kind of dissuade you from going into a custody battle.
Kelly Chang Rickert: No, never.
Kelly Chang Rickert: Oh yeah, absolutely. So many times at the end of a mediation both parties will look at me and tell me in private that wasn’t so bad. I thought it would be so much worse. And it’s that breath they’re finally waiting to exhale that it’s I can’t believe it’s over and the papers have been signed and we just wait.
Because I think a lot of the fighting is because you’re still fighting and there’s no finality and you guys are at that sensitive part where you’re just fighting over everything and so it could be one little thing that triggers the other side then often, you want to spend 50,000 on attorney’s fees to prove your point.
That’s the beauty of a mediator because when it gets really heated, you just need somebody to take you a step back and just to tell you to take a deep breath and focus on the issue and if you can get past that emotional reaction, a lot of people can then you can reach a settlement.
The problem with litigation is that you have attorneys that are trained to win at all costs which is fine when it’s a personal injury case and there’s an insurance company that’s liable for the damages, go for it, go for the jugular that’s what you’re there for.
But when you’re dealing with a family, you’re dealing with the brokenness and all the legacy that you leave and you’re also dealing with finite resources. A couple that have acquired 20 years of assets for them to easily spend that, for them to spend it on a divorce it’s very easy.
So a lot of times attorneys are like, I don’t care I’m getting paid. Well, you should care. You should care and you should not want to spend 50,000 of their money to fight over 5,000 of a community asset. It makes no sense. But unfortunately a lot of lawyers don’t get that because they want to get paid, they want to focus on the paranoia and the fears and go into court and fight over stupid things like garage door openers.
Kelly Chang Rickert: Yeah it’s like you get half the cleaning supplies, what do you do? Like come on really half of everything? Half is not — half is not whole, you will never be made whole.
Kelly Chang Rickert: Yes.
Kelly Chang Rickert: Because I think it’s a very selfless act. I think mediating and maybe giving up certain rights that you may or may not have in court, it’s like an indicator that you’re sacrificing just to end the war. It is not a retreat, it’s not a surrender, it’s being smart, but a lot of people don’t see it that way.
They want to go to court, they want to destroy the other side, they want to kill the other side, that’s why you have a lot of these murder suicides that happen in family law. It’s usually a father who had a fake restraining order placed on him or maybe a real one, he walks right through that restraining order, blows all their brains out and kills himself.
It shouldn’t be that way but people are just so awful which is why they are in family law to begin with. If people worked harder on their marriages and it was more intact and they cared more about each other, divorces wouldn’t happen and divorce lawyers wouldn’t get such a bad reputation.
Kelly Chang Rickert: I usually listen to them because a lot of it is they need to vent. Even though I’m a lawyer and I’m focused on the law, I know that a lot of my job is compassion. So I listen to them and somehow I slowly nudge them to the issues of the law. Family law is very easy. There’s only four issues; there’s child custody, support, property division, actually there’s only three issues, that’s it.
I guess it would be child support, spousal support, property division, but it’s only four issues and we can just focus on how we legally separate this couple, it should be easy, but everybody is talking about winning, that they want exactly half or they want exactly half of the kids.
You just have to get them off that because they don’t want to lose.
Kelly Chang Rickert: Well I usually tell the client you’re entitled to as much as your husband is or your husband is entitled to as much as your wife is because whoever came to see me first I’m representing.
So it’s not like I have a particular predilection for one side, but the truth is both sides have equal rights. I mean even if you’re a traveling father, let’s say you’re out and you don’t spend as much time with the kids it doesn’t mean that you don’t get the kids when the divorce happens. A lot of times, fathers do step up when there is a divorce, because now half the time the kids are with them and that relieves the mother and then the mother who was once stuck at home without a career can now make her own career.
So it’s a reorganization of family. I read this off somebody else’s website which I thought was really clever, because as a divorce attorney you’re not just dividing assets you’re reorganizing their life.
So you’re trying to put people on a new path without destruction. You want to make sure that you don’t kill them.
Kelly Chang Rickert: So I guess it would depend how long the marriage was and how old the stay-at-home person was. Nowadays 51% of the workforce is women, so it’s not that big of a concern now, because both sides do work and strangely enough, a lot of times divorces happen in to working households, because there’s like an imbalance of work and family.
But that’s a different issue, but yeah, I don’t see as many — like if a one of us truly stay at home for 30 years it’s — I don’t see as many of those divorces, but there are still remedies. So let’s say you’re married for five years and the wife would stay at home for five years, there is a way if she’s still youthful enough to get her retraining and back into the workforce. And almost every single stay-at-home mom that later went into the job force has came back and told me it was the only thing that kept them sane, because working provides camaraderie, it gives you a sense of accomplishment and purpose that you would otherwise not achieve being a stay-at-home parent.
So I do think working is very, very healthy for stay-at-home people.
Kelly Chang Rickert: Yeah sure. There’s been this fight. Historically, mediation communications are protected. So what that means is if you’re an attorney and you’re going through mediation with your client, if your client later decides to sue you for malpractice, all the communications made during the mediation even if it’s something like oh you should take it, you’re going to do a better — that cannot come out because it’s confidential.
So what occurred after that is that there was a lot of attorneys committing malpractice because they’re not properly advising their clients and their clients can’t sue them because they’re a mediation.
And so they were trying to get rid of the mediation confidentiality law when it comes to lawyers representing clients and mediations, but it turned out that, that did not happen, instead a compromise arose which is Evidence Code §1129. So now you have to give your clients an advisory if you’re in mediation, that all these communications are confidential, but they can still sue you for malpractice under other circumstances but not under that using the communications done in mediation.
Kelly Chang Rickert: It’s everything. If you’re in mediation, you can use the advisory contained in §1129, it’s a text that you can generate, you sign it, and you have your client sign it.
Kelly Chang Rickert: Yeah. It came out January 1st of 2019 and the code actually provides the text that you should give to your clients. So what everybody should do is print in 12-point format which is what the code requires and it has to be not attached to anything else, it’s just for this one advisory, you explain it to your client, you have them sign in then you sign it.
Kelly Chang Rickert: It’s something that clients do with their attorneys. So I – wouldn’t like it just because I haven’t seen it from an another attorney doesn’t mean that it’s not happening, because it’s an interaction between the attorney and client. My office does that. I don’t know if others do it, it should be though because it’s a new law and any attorney that enters into mediation with the client should absolutely use it, it’s the law.
Kelly Chang Rickert: So the majority of my mediations I am the neutral mediator and the parties are not represented. They have consulting attorneys on the side but they’re not represented. So the paperwork I prepare for them has each of their names in pro per.
I have handled a few mediations where both sides are represented, but that’s the minority of my cases.
Kelly Chang Rickert: So my mediation sessions are pretty therapeutic and they’re pretty fast.
So a lot of times I send home work, a lot of articles that I write before the mediation and I also have this packet prepared informing them about preparing the preliminary declarations of disclosures. So I give that to them before and sometimes they’ll come in prepared and we can get to work or sometimes they don’t have time we’ll do the actual preliminary declarations of disclosures in the session.
But you come in, you make use of my conference room, I usually provide coffee and breakfast, because my sessions are in the morning and we start getting to work. I have agenda prepared for every mediation session and we just go down that agenda. We start with ground rules, my background, talk about each other’s concerns and then we document any agreements that you already have and then we focus on the issues that haven’t been resolved and then we talk about how to resolve them.
And after one or two sessions I can usually reach an entire agreement.
Kelly Chang Rickert: I love giving back. I think it’s so important to return the favors that your community has done for you. So yeah, I do tend to volunteer. It’s something that I do because I feel about it. I get a lot of callers and so my staff answers and a lot of them just want pro bono. Unfortunately for liability purposes and for my insurance carrier I can’t take those calls, I can’t take clients pro bono. So the only way I can give back is to volunteer at a local community.
So I do that every month I’m — every month I have something going on. So I’m either sitting as Judge Pro Tem at the small claims court or I’m a DSO which is a Daily Settlement Officer, it’s just a fancy word for mediator in the family courts in LA. Or yeah, I volunteer at the Levitt & Quinn Center where they screen the clients and you know they really, really need help, be to qualify for legal aid.
Kelly Chang Rickert: But yeah, I encourage all attorneys to do that, because that’s how you’re going to get your training. In the beginning don’t focus on how you’re going to get paid for your work, focus on how you’re going to learn how to do work that you can later get paid for.
Kelly Chang Rickert: Yeah absolutely. I was doing work for free those first couple of years you know, I wasn’t charging at all, but that’s you volunteer, you’ve learned, you make your connections and you give back. Everybody should give back.
Kelly Chang Rickert: Yeah absolutely. I just encourage callers to check out the legal aid. Private law firms can never offer pro bono just because of insurance claims and stuff like that, but they can call and they can find legal aid and I have a lot of information just on my website if you just want to know general information about family law it’s right there, you just have to take the time to read it.
Kelly Chang Rickert: Sure. So you can find me at www.purposedrivenlawyers.com. And on my website there’s two blogs, one is the one you mentioned, divorcefamilylaw.blogspot.com, that was my first blog and then there’s a second blog Purpose-Driven Lawyers blog that’s updated weekly.
So what I do is I spend a couple of weeks writing a hundred posts and then they automatically just update week after week. And I’m also on Instagram and TikTok, and Twitter as @lawyerkelly that’s my handle and I think LinkedIn, yeah LinkedIn on Lawyer Kelly as well.
Kelly Chang Rickert: Yes, I do, that’s a bonus to my job. Every time a celebrity is going through a divorce I get to give my two cents, my worthless two cents.
We’ve just about reached the end of our program, so we’d like to thank you for listening and if you like what you heard today, please rate us in Apple Podcasts, Google Podcasts or your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can leave a comment on today’s show and sign up for our newsletter.
And we would like to thank Kelly Chang Rickert for joining us today.
I’m Craig Williams. Thanks for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.
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|Published:||December 23, 2019|
|Podcast:||Lawyer 2 Lawyer|
Lawyer 2 Lawyer
Lawyer 2 Lawyer is a legal affairs podcast covering contemporary and relevant issues in the news with a legal perspective.