MIC2
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MIC1: [00:00:00] Here we are, another new style for the pod. We have a table full of people. You can't see us, but there are five of us sitting around the table, and Julie has a really exciting format for you today. 

MIC2: So today we have Cara Sawyer, Katie Fow, and PJ McGinnis, who are three attorneys that I work with, and I'm very lucky to work with who are all family law attorneys, who me?

MIC1: Do we want everyone to do like a little intro yeah. Go. I'm Kara Sawyer and I am a family law attorney working with this crew here at Land Macker Lane. I was a former prosecutor in Philadelphia where I focused mainly on domestic violence, sexual assault and child abuse. And then, for years after that I worked in state government in the state of Delaware and then I worked in education law.

I think for me, family law has really solidified my, belief that if you can get along or at least just.

Be able to listen to somebody else and [00:01:00] understand their point of view. It just makes life so much better for those around you. And that's so true in a custody situation for sure.

I am Katie Fowl. I work with these guys, , at Land Maline as well, and I'm a much newer attorney. I've only been practicing for about three and a half years. Before coming to work with Julie, I was doing medical malpractice defense out in Montgomery so been a very big change for me, but, a good one.

I think my biggest takeaway, as an attorney, really walking the line with our clients. To be very realistic with them, but also have compassion for what they're going through. This is their everyday life. They take it home with them. I don't, I go home and I have my own stuff, but, just really being a good listener, but not giving false expectations for what could happen in a courtroom or in front of a hearing officer just keeping it real and have a lot of [00:02:00] empathy for what they're going through right now.

MIC2: A lot of attorneys have blinders on and they see only their case. And I think what all of us try to do and do, do well is say, look, there is another side to this and I can advocate for you, but I'm not gonna advocate blindly.

MIC1: You don't wanna just be a yes man. All the time, you know?

MIC2: I'm PJ McGinnis. Born and raised in Montgomery County and I have been working in family law firms for, I believe it's now 14 years. I started doing just filing and organizing and haven't turned back since. I've been in practice, I think seven years now.

Met Julie at the start of 23 and have been expanding my practice out in Chester County. Although I am Monko fan as everybody knows.

So in Chester County, when you file an initial complaint or a petition to modify, you have two things that you have to do prior to going to court. One is attend mediation. The notice will say you have to call within three days and schedule the mediation. No one probably ever really gets it done in three days.

And the only thing you really [00:03:00] have to do is get the mediation done before court. Caveat to, the mediation. If there is an active PFA, then they won't require you to do mediation. Sometimes you can agree to just skip mediation. Now the court might give us a little, shit for it. But ultimately there's been a few times that I've said to the other lawyer, look, I know it's required. That's never gonna go anywhere. It might actually deteriorate things. We've gone in and the hearing officer maybe one time has said, have they gone to mediation?

And frankly, one time I use it to my benefit 'cause my client was at a good spot with the custody order. So I said no, and I think they could try. So it kicked the can down the road. But in any event, mediation's required the parenting class is also required. Parenting classes like two hours on Zoom. I think I've never had to do it.

That is something you have to do one time a year. So for some reason you went to court January 2nd, and then you're back in court November 30th. You only have to do that once. So that's the beginning process.

MIC1: What if the person doesn't go to parenting class?

MIC2: This is a good question because there are people, are very much like, well, I followed the rule and they didn't, I'll be honest.

More often than not, they really don't care. They be in the [00:04:00] court. It's not that they don't care in that they think that you shouldn't do it. It's like we can't micromanage every single person. The court is not gonna say we weren't having your hearing because you didn't do the parenting class. You can bring it up and show that they're not taking the process seriously and all those things.

But the amount of weight that anybody's gonna give that is, a one out of a hundred if anything. Pj, have you ever had it pause the process where someone doesn't do the parenting class?

No, I have not. In fact, the last case I had a week ago, it was not even brought up for discussion. Even though I know I made my client do it again just to make sure we check that box, so that's kind of how that process will work. The court ordered mediators are at lower cost, so there's a list of people who are mediators for the county.

They're private mediators, but they are on a list and the county just rotates. Monday, I'm not on the list, but if I was Julie Pods, then the next day would be Kara Sawyer, et cetera. We are all trained mediators who are able to do this. There's a 40 hour training course.

It's intensive , I think I did it 10 or 11 years ago.

For my course, I actually had a trainer, for lack of a better term, come up from [00:05:00] Maryland and train a group of us actually at my house because we wanted to coordinate it. So we went straight from a Thursday to a Monday. So again, it's a 40 hour, at least when I did it was in person and it's great but it's intense and it teaches you. A lot of things, but one of which, which is probably why I don't do a ton of it, is that you can't give legal advice.

Our job is to guide. You can tell them what the law is, you can tell them what the court might do, but you can't give legal advice. So whether it's this process or the mediation process privately, 'cause people can mediate their divorce, their custody, their support, this is something that people don't know, is that the person cannot, should not give you legal advice. 

MIC1: I think that's a really good setup for what we're gonna do today. 'cause I think that's confusing when you're, never been through it or you're not familiar with the law. What does it mean to not

MIC2: get legal when you hire a mediator, the goal is for the two of you to come to an agreement on your own without the court's involvement, because ultimately when you go to court, you lose control. The mediation process , the goal is that you two can have a conversation. So you [00:06:00] can get to the best circumstance for you and your family 'cause no one else knows you and your family but you.

MIC1: Is there a court reporter there that's taking notes?

MIC2: Not only is it private, but you're not allowed to use what was said in mediation against other people. Does it happen? Yes. The mediator cannot be called as a witness.

The only thing the mediator does in Chester County is give a mediator report. 

MIC1: Yeah.

MIC2: No, The mediator report simply says they showed up, they participated and what issues they resolved and what issues they didn't. It's not uncommon, but it's not the norm that you can come to a final agreement, a mediation.

The only caveat is that if you come to a final agreement at mediation, meaning you sign the court order, I cannot undo it. I, if you say, I'm gonna agree to this sign off and it's done, you're done. I can't unring that bell. So in some cases I'll say, look, if you can get it done, great. If there's certain higher, conflict issues or what have you.

I'll say, look, if you can get pretty far, that's great, but let me look at it first because again, I can't undo it. But in this kind of case, if the parties came to an agreement and both parties felt comfortable, I don't wanna stand in the way of that. So the only thing you have to sign is the mediator report.

You showed up, you participated, et cetera. If [00:07:00] you ended up in a final agreement, it would be a custody order that will be signed by a judge. A court ordered mediator is at lower cost. I think you pay a hundred dollars each for two hours. So $200 for two hours is a bargain, for talking to an attorney who is experienced.

MIC1: Because if you hire privately, I'm sure it's a lot more than

MIC2: you'll pay the hourly rate. Yeah. But the goal is to get progress. Even if you don't get it done at mediation and you make progress, that's great. 'cause then we can say some things are settled.

MIC1: Still cheaper than going to court.

MIC2: It's always cheaper than

MIC1: court. 

Alright, I think we're ready to get started

MIC2: Katie's gonna play, mom, PJ's gonna play.

Dad, this is a real case. We're obviously not using names or any specifics. You're gonna hear a more typical case so that you can hopefully get a feel for what it would look like if you were in this situation.

This is an abbreviated version, so the, the mediator's gonna go through the basics. I'm not your attorney, I can't give you legal advice and all of that kind of stuff.

It's what we call an orientation. I'm not gonna waste the time on that. So then when I do private mediations, I usually say to the people, and this is custody only. I say, all right, let's start talking about your kids. I'll [00:08:00] give, mom the chance she's the plaintiff in this situation.

Mom, tell me a tiny bit about your kid or kids.

MIC1: We have one child. He is, two years old. He is a active, little boy. He loves to play outside. He is in daycare. He loves his daycare. Myself and our son, we live with my parents.

MIC2: And where does dad live?

MIC1: Dad lives about between 35 and 45 minutes away. He has an apartment, and, um, right now we're working on our own schedule. 

MIC2: Dad, do you have anything to add to that? he's shaking his head no.

Mom, you filed for custody. Let me start with what are you currently doing? What is the current schedule?

MIC1: So we're alternating weekends and,, dad has one overnight a week, with our son.

MIC2: Okay. And what do you want to see happen?

MIC1: I would like to keep things as they are. I think that it's working well for us.

MIC2: Okay. And before I ask some more questions, dad, what do you want? I want 50 50 and I don't know why mom is not willing to just gimme some more time.

I've changed my job, I've updated the schedule, and I [00:09:00] have basically made myself available to help care for the son and do this on an equal basis, but for some reason, mom's not wanting to give me more time. So before we get too far into the actual time, I wanna talk about two parts of custody. So if your lawyers haven't described this or explained this to you yet, I'm gonna just jump in.

There's two parts of custody. There's legal custody, which is decision making, and then there's physical custody. So let's start, since time sounds to be one of the issues, let's talk about legal custody. Do either of you know what legal custody is?

MIC1: No, I don't. Could you explain that,

MIC2: Sure. Dad, do you have any idea or do you want me to explain it as well?

I've googled some things, but if you could give me some insight, I, I think I'd appreciate that. Okay. So the best way to describe legal custody is the ability to make decisions for your child or children. Legal custody is education, legal, medical, et cetera.

So what that really means is, for example, vaccinating your kids. I always use that one, especially post COVID, when that was a bigger issue. And it's actually a big issue now with, measles and, epidemic, et cetera. So whether or not you're gonna vaccinate your kids, where they're gonna go to school, what [00:10:00] religion they're going to be, and I'll use.

Catholicism just because that's what I was, baptism, et cetera, that has to be decided together. That's what legal custody is. I can't tell you guys what to do, but I can tell you that for the most part, legal custody is shared between the parties. So now that you know what legal custody is, have you had any issues or do either of you have a position on sharing legal custody or not?

MIC1: From my point of view, we really have any issues, working those things out.

MIC2: Yeah, he's only two. So at this point we've just decided on childcare and that seemed to go okay with mom. So hopefully in the future with other important things, we can work on that together. So I wanna talk about childcare at some point, but what I will say is that I think that's, probably consistent with what the court would do.

And so I think we start with one thing that we resolved is having shared legal custody. Now legal custody will be defined in five or six paragraphs on your custody order. It's much more in depth than what I just explained, but what I would also just make sure is that when you do get your custody order, whether we finish it today, make sure you read it because you wanna make sure you follow it.

Okay? So let's [00:11:00] talk a little bit about your work schedule. Mom, are you working.

MIC1: I'm an administrative assistant at a law office, so I have a very regular nine to five schedule.

MIC2: Okay. And how far is that from. The daycare that you chose

MIC1: about 10 to 15 minutes.

MIC2: Okay. And, what about you, dad?

I am a nurse at an er and I have a varied schedule, but, I've made it so with my employer that I have time to be with my son. And I really would like to have more time than what mom is offering me. I think that's a good point. This is me not as a mediator. When I have people come in and and I'll be sexist, moms usually say this, I will give him time and, and PJ is, dad just said what she's willing to give me.

I always like to pause on that because when you say that. On either side, it sounds as if someone's in control, and frankly, they're both of your kids. And I might even say that as a mediator dad, just so you know, you said give like you're a parent just as much as mom, but I think that's good advice for you to hear, whether it's through your lawyer or here as a mom in this situation, you're not the giver or the taker.

This kid is equally both of yours. .

The law legitimately [00:12:00] says there is no person more entitled to the other mom or dad.

All right, so back on script if you will. So, mom, you heard what dad said.

He says he can make a predictable schedule even though he does work at an ER and he wants to have more time. Have you thought about what a schedule, if you were open to it, what it would look like if you did have 50 50?

MIC1: Uh, no. No, I really haven't.

MIC2: And dad, have you thought about a schedule that would work with your current schedule that would make 50 50 feasible? Yes. And I've tried to talk about it with mom, but I think we need your help. With your schedule, did you say you work two weekends a month and then you can base your weekday time on your custody schedule? Yes. that's right. What are you thinking then, if you have two weekends a month, are you thinking you get the weekends that you don't have and then mom has the others? Yes. And then I'm only working on certain weekends, so I am available during the week, and that is consistent. Mom, let's just start with weekends, you have every other weekend.

So is that working? And now that we know dad can confirm that works is every other weekend working.

MIC1: it is working And [00:13:00] dad just changed his job without telling me, and he continues to change his mind about what he wants to do with our schedule, all the time. So I don't really trust that he's gonna be able to keep up with a regular weekend schedule the way he's requesting.

MIC2: Okay. Let's just pause for a second because , in the mediation process, we don't have to solve every problem. So the weekend time, I think both of you say it is working for the most part. Dad said yes.

MIC1: yes. I, I guess I would say so. Yeah.

MIC2: Okay. So then we can say we have shared legal custody and we can talk about every other weekend being in place.

So now we've gotten a couple things that are at least tentatively. Okay. And is every other weekend, Friday to Monday or Friday to Sunday?

MIC1: It's Friday to Sunday right now.

MIC2: Okay. And dad, is that okay with you or did you want Friday to Monday? I'd prefer Friday to Monday. Again, I wanna spend as much time as I can with my son.

Okay. And mom, what do you think about Friday to Monday.

MIC1: I mean, I guess I could be fine with it, except dad has a regular hours, so if our son has to stay with me, dad keeps asking me to [00:14:00] return him at like six 30 in the morning on Monday.

MIC2: And is that something that you feel is inconvenient

MIC1: Extremely inconvenient given how far away we live from each other and he insists on me bringing our son to him.

MIC2: And what time does, his daycare start?

What's the earliest drop

MIC1: the earliest drop off? is I around 7:00 AM. If you wanna do early care.

MIC2: So have you talked at all about what the right of first refusal is?

MIC1: No, we have not.

MIC2: And I'm gonna guess, dad, you haven't either. No. What's that? Okay. So the right of first refusal is something we can put in an order that says if the person who has custody isn't able to care for the child, then the other person has the first right to say, I wanna have the time. And the custodial parent has to give that option.

So knowing that that's something we can do. I will say for the most part, courts are inclined to give right of first refusal, but only for overnight time. So in other words, if you need a babysitter for four or five hours a day, that doesn't mean that you have to give dad or mom the time. You can have your parents, you can have a babysitter, but overnight seems to make sense.

So that kind of made me think about Sunday. So [00:15:00] instead of having 6:30 AM would it help if there was a provision that both of you had the right of first refusal, so if dad was working Sunday overnight for example, you would be able to pick up your son Sunday night as that right of first refusal?

MIC1: I think that could actually work really well for us.

MIC2: Okay. And dad, what do you think? Yeah, I'm open to that. I realize that he's just two and our divorce was messy and hellish. But, um, I'm really hoping that we can turn a page and try to figure out. These types of things, and I'm willing to do that if she is.

Okay. So it would be Friday, after school or camp or daycare, whatever, or if not, what time? Three or four o'clock after school, something like that. That me. Okay. And dad's shaking his head yes. Two Monday. Same thing at drop off to school or a set time, but we put the writer first refusal.

So if dad has to work in this hypothetical, he'd have to let you know. And by the way, if you can't take him for whatever reason, then dad, you have to find childcare. So you can't just presume mom is gonna always be available. While I'm sure she's going to always make herself available, you just need to have in the back of your mind, you need to have a backup.

[00:16:00] Okay. it. Okay. So far we've agreed to share, legal custody, and every other weekend, Friday to Monday. And we're gonna have a provision for the right of first refusal that will come into play for overnights. Everybody's shaking their head yes. Okay, let's just pause for a second. Kara or Katie or PJ or em, anybody have a comment?

MIC1: What if there's a case where, either mom or dad has since before coming to mediation, has had the majority of the custody and you start by talking about 50 50. Is that normal?

MIC2: you mean? If the one parent's like I have all the time and I don't wanna give anything up. So I can't say, 'cause I don't do the court order mediation, but what I would say is if I had a mom who was like, uh, no, I have all the time and I'm keeping it, that's where it's hard, right?

Because then that's where the mediator can't go. You're being unreasonable because that's never gonna happen. And I can't say to dad, don't be an idiot and take that.

So as a mediator, I would say, well, let's talk about what we could expect in court. I think I would say, mom, I hear you, that you've always been the caregiver. He's young, but the courts aren't [00:17:00] going to look at you as the only parent because they're gonna have some questions like, can Dad do it? Is dad willing to do it?

And , you have to kind of read the room. And if you're in the situation as a litigant and you're starting to see things go south. So if mom is being my time and he doesn't get any, what I would do as a mediator is say, okay, let's put that on pause.

Can we talk about holidays? Because All right, I see that the regular schedule might be difficult, but let's go through the holidays. Can we get some agreement on that? Usually most people can agree on holidays. I tell people this all the time, please do not pay your lawyer to figure out your holidays.

That is a waste of your time and money. The default is the course. We're gonna alternate your time with holidays. So that would be a way that I would pivot some of that tension and if I were in the room, I would say, so now we've got shared legal custody. Now we have every other weekend. Now we have holidays figured out. And then I could even go into vacation, let's talk about vacation.

There's a lot of pieces of that puzzle that we could get into so that at a minimum we can say we've agreed to, legal custody vacations, holidays, transportation. [00:18:00] Maybe some special terms. So now we have four to five things resolved. Now the harder one is the time, but so what, we got some things resolved, right?

We don't have to get to the finish line. The goal of mediation is to get you closer, if not all the way there.

MIC1: My question is, this seems pretty amicable. Is this usually how it goes? People in mediation, do they tend to be on their best behavior or do they tend to be very, adversary towards each other? I'm sure it's different, but I'm just curious

When you pipe in, do they say , okay, I guess I see what you're saying.

MIC2: It definitely depends. But. There's a surprising amount of people who can do this. I mean, truly if you can put your kids first, this should not be as contentious.

The problem comes in as parents who put themselves before their kids. What we're going through is a pretty much a real case , Katie and I worked on a case and she just settled it.

And this is a little bit of exactly what happened. We started with just some progress and then we got stuck on the time, but there was a little push and pull. We had to get to the point of almost going to trial, but we avoided it because we did the push and pull a little bit.

MIC1: And then the other question I had, I know this is custody and custody and support are typically separate.

Does it usually come up [00:19:00] like, and you're not even paying me or you're paying me too much and that's why you want 50 50. Does that factor into mediation? 'cause I know in court those kind of end up being pretty separate, but if the whole thing here was like he only wants 50 50 'cause he's paying me too much in child support, does that come into this or is that that's a separate thing.

MIC2: I'm gonna let PJ chime in on this, but I would always say as I describe custody and support and divorce as different buildings, they're on the same campus ' but they all kind of interrelate.

Yeah, it really is case specific. I've seen plenty where they can lump it all together and get it done and, sit down and talk through custody and support and walk out with a happy agreement.

MIC1: So there is no hard and fast rule with this, that we can't touch on support because we're here to talk about custody

MIC2: In a custody mediation, that's court required. You're only gonna be able to go through, custody. You could say to the mediator, Hey, this was really helpful, can we come back and do support?

And the answer to that is yes. The person will tell them, Hey, if we don't get done this and we wanna continue, this is my hourly rate. So while you can go to a private [00:20:00] mediator and do everything all at once, I have also.

Learned the hard way that sometimes you don't want to bite off more than you can chew and try to do everything at once. Case specific, but sometimes people need to just focus on one thing, check that box, and then they're ready to move on to the next. So it'll depend on the people and the family

Going back to one of EM'S questions about, this scenario that we're playing out is pretty amicable. Even when people come in guns blazing to my office and, want to go after certain issues and file this and do that, if I see any.

Small chance that these people might be able to cool it down and be on a level playing field. I will always first recommend, Hey, you should try to resolve this through arbitration or through mediation because when you roll the dice and go to court, you are putting the decision into a third party who really knows nothing about you, your family. We can sit there as lawyers and advocate what your job schedule is and go through the factor analysis, but these are your babies and if there's any chance that you can figure this out with the help of a neutral [00:21:00] third party, I will always really strongly suggest that because court, you are rolling the dice.

When I have people come in and say. On either side. He only wants 50 50. 'cause of support. The custody does determine the support because there is a reduction once you hit 40% and the maximum reduction when you hit 50%. So if I'm representing mom, I'm going, look, don't focus on that.

'cause it can go the other way. They can say she only wants him to have less because you want more support. And on the same end, I would say to dad, dad don't talk about time like a doctor.

You should go in and say I want to have as much time. With my child as possible and I am available as much as mom and I want as much time as possible. If, and this hypothetical dad came in and said 50 50. 50 50, 50 50. And I'm the fact finder. It is gonna come into their head like, okay, we hear you. But if you say things, and I hate this term, softer, but it's the term I think is best, you'll get further faster. Because even if it is in your mind, which it should be, it's okay to have that in your mind.

When mom hears, I just want as much time as [00:22:00] possible and dad hears from Mom, I'm really worried you're not gonna get Johnny to soccer, then at least you're hearing each other and hearing the real concern 

MIC1: Are there situations where as a mediator you get the sense that one party or the other feels as if they are being bulldozed by the other party? And what happens as a result?

MIC2: What I would do,

If I see, one person doesn't matter which side pushing and pushing and pushing, and I can sense exactly what you're saying, I'm gonna say, look, I think you guys need to pause and go talk to your lawyers.

This is why you need to have lawyers. So the whole point of mediation, no matter if it's court ordered or if it's private, is your lawyers are supposed to be there to guide you in the background. 'cause they don't come. And For example, dad, if I'm doing a divorce and he makes 600,000 and she makes 50,000 and , all the,

indications are she's gonna get more than 50%. And husband's coming in going, what the hell she doesn't need, it's my money. That happens a lot. , I would say, look, I think that we're going down a path that isn't gonna be very productive. So I'm gonna suggest [00:23:00] that you all pause. 'cause you can go to as many mediation sessions as you need and talk to your lawyers about, husband's coming in and saying this, or Dad is coming in and saying this before you agree and you can do whatever you want.

Talk to your lawyer. That's their job to give you guidance. So when I have seen that in all types of mediation, that's what I usually do. , I think in my experience, I've seen great mediators will. Isolate those issues and pinpoint them, like you said.

And what I have found helpful as the attorney is getting a summary memo, if you will, after that session, where mediator Julie would say, here's what wife or mom said, here's what dad thinks in response. This is the issue, this is what needs to be addressed with your attorneys, and then come back. So I've found that really helpful when the mediator, addresses what the hot topic is.

And then it allows me to go through with my client, okay, well here's my thoughts on it, here's what I think you should go back and ask for or respond with. And that has led to productive outcomes as far as I've seen. 

MIC1: In [00:24:00] a, a recent case of mine, the parties were able to get like 90% of the way there.

And, the mediator provided us with their agreement that they made. And then myself and the attorney on the other side were able to just work out the details and they didn't need another session. But it's helpful to get the high level stuff and then the attorneys can deal with the nitty gritty, on either side.

If it doesn't get covered in mediation, that way we can finalize it and they don't have to go back again.

MIC2: I always use this term and I don't know what you guys use or if it's the same one, I call our job whack-a-mole, let's get one thing done and then we go to the next one.

We cannot hit all of the, moles at the same time and I always say like, look, you're trying to climb a mountain in one step, slow down one step at a time.

MIC1: Some clients will say I would do mediation if I didn't have to meet with the other party. So what do you say to that

MIC2: Maybe mediation's not the option for you and that's one where you just need to go to court. , Nowadays, most, if not all mediators that I'm aware of will do Zoom. So if you don't wanna be sitting across a table face to face, 'cause it can [00:25:00] get.

Dicey Zoom is a great option for those individuals. Also if there are abuse allegations or issues or if you just can't stand being in the same room with the person, zoom works just as well. And I've also had experiences where the mediator can do breakout rooms and caucus one-on-one with the parties.

As the mediator we see that we're hitting an impasse. I'm going to pause, I'm going to breakout room with mom, chat with her, get her sense, then do the same thing with dad, and then that would allow me as a mediator to bridge any gaps or try to get them back into a place of reasonableness as opposed to let's just dig our heels in and get stuck on, Christmas holiday or what have you.

Just so you know, when the caucus happens, it's to see like what's really going on behind, like if there's a digging the heels in for some reason where it's like, hmm, it's, it's in part because the mediator is gonna be like, what's really going on?

And to be honest, sometimes just getting it off the person's chest is helpful. And PJ also brought up domestic violence, so that's why , if you have A-P-F-A-A mediation is not [00:26:00] appropriate I've had a case where there was significant abuse but not a PFA and I have asked for that to be excused because it's, improper for them to be in mediation.

In private mediation, if someone says, well, I don't wanna spend all the money, but I do wanna do mediation. One of the things other than domestic violence, , I look at, the power differential if I see somebody who I think is, overpowering, I would probably say, look, you've got to take it down a notch.

And then on the flip side, if I see a person who seems more submissive, for lack of a better term, I might say, do you feel like you can stand up to that person? Do you feel like you can advocate for yourself? And that kind of is how that conversation starts. All mediators are required to go through a certain set number of hours of specific training on domestic violence.

And they are well equipped to handle issues like that in the event. There are two parties that have had prior issues of. Domestic abuse, in the household. So, a good mediator will know how to size that up and handle it accordingly and protect everybody involved. , there are people who don't actually admit to the domestic violence [00:27:00] because they're embarrassed, they're ashamed, and, I joke, I've been doing this for a hundred years,

yesterday I was with a client and, I could tell there was something else going on, and like 45 minutes in I was like, all right, what's really going on? And she finally spit it out. Our job is to also read the room, kara was a former da, as was I, and one of the things that we saw a lot in domestic violence cases is they would call the police.

There would be this egregious incident where someone was very seriously injured and then the victim would not cooperate because of a, the power struggle, the financial issues. And frankly they're embarrassed. 

MIC1: I totally can see that happening and I'm glad to hear that mediators are trained at least to recognize that happening in a session and try to address it as best they can.

Cause it does happen to lawyers too, when I've had the exact same scenario you just described, in a consult, same thing. And , still is like that sort of sense of shame that happens sometimes.

MIC2: Unfortunately I

MIC1: think we're still

MIC2: very, outdated, for lack of a better term. When people go, well, why did they [00:28:00] stay?

Well, why did they keep putting up with it? Why did they do this? That's frankly stupid because there's a lot of reasons and the judgment is unhelpful no matter what side you're on. And there are times when people have had domestic violence and it has been enough time that they say, no, I can handle this.

I got this. That does happen. It doesn't mean that if you are a domestic violence, perpetrator or victim, that the more amicable process is out of the realm of possibility. But as the lawyer for the person who is the victim, I would be very hard pressed to put them in that situation because again, I don't wanna re retraumatize them.

I think we covered probably what I think is important, doing the things piecemeal, and then at the end, let's just say in the hypothetical we just did, we didn't get through the weekday, but we got through all the other things.

Then the mediator report would say, we've resolved shared custody, holidays, vacations, and every other weekend. The issues to be resolved are, if there's any special terms, such as the right of first refusal and the weekday visit, and then that way that's maybe 90% there. So then we can go as the attorneys, let's [00:29:00] try to bridge the gap and generally if both parties feel, eh, meaning, alright, fine, you probably did it right.

If one person's like, I won or I lost, it's probably wrong. Because. First of all, there is no winning or losing 'cause it's about a kid. But generally speaking, if you both walk away going, ugh, it's probably the right solution. I think we say that a lot.

Whether it's mediation or in court or just in our line of work in the office when we're talking, the best result is usually when two people leave the room with that. Uh, that is often when it is the decision you've made or the court has made is in the best interest of the children. And that's the ultimate standard, is the best interest of the child.

Now, there's 11 factors to go through on that, and in this hypothetical, we didn't go into safety issues, which is the biggest weighted factor. There's no siblings in this hypothetical. The kid can't chime in. He's two. But for the most part it's a typical case. One thing I try to say to people who are a stronghold against 50 50, for seemingly no legitimate reason, I say to them, you have to remember that kids are very center focused.

So they're not thinking about anything else but [00:30:00] themselves. And if dad or mom has less than half the time, they think that parent's choosing not to see them as much. They think, well, dad or Mom doesn't wanna be around me. Whoever has the person more, let's just say dad has the person more.

Well, dad obviously wants me to be around 'cause I'm with dad more and mom doesn't really wanna be with me 'cause she doesn't see me very much. Kids are center focused. They're not thinking about a custody order, they're not thinking about all the shit that went on in the marriage that makes each of you angry at each other.

Kids think about themselves. And so this is where sometimes I'm like, look, if you say Dad, that mom is that terrible that she doesn't get half the time. Well that kid's gonna think Mom doesn't want me. And you gotta start thinking about it from the kid's perspective. So I have explained that and it has moved people.

To say, I see your point. It doesn't mean it always gets it done, but sometimes when I try to put it in that perspective, I think that helps them see why the courts are leaning closer to 50 50. That's not the only reason, but I can say as a kid who lived through a divorce, and I mean mine was not this what we just went through, I thought my dad didn't want to be around me.

And [00:31:00] frankly that was good for me. But in the long run, that's not what I was thinking When I was 4, 5, 6, 7, whatever I was thinking there was something wrong with me and he didn't wanna be around me. I know that's not true now, but when you're a kid you're not thinking that and you don't have to have the perspective of living through it to have that perspective if you just stop and go, huh?

What would I think if someone is, is not around me, I'm thinking they're choosing not to be around me. I'm not thinking about a court order. And certainly there are cases where 50 50 is not appropriate and right now we're focusing on the general idea that 50 50 shared , is where the courts are leaning.

Yesterday. I was in court on a custody case as the guardian ad litem for the children. I'm wanting to stress your point, Julie, about try to put yourself in the kid's shoes and look through their eyes. They love mom and dad. They want both of them in their lives.

The case, the two parents cannot agree left is, left right is right they are so far apart and they just are really having a hard time. And I did advocate and I did basically say like, I've sat with these kids, I've talked to them, I've, I'm essentially putting myself in their [00:32:00] shoes and I am telling both of you that they love both of you and you need to work out a shared arrangement here because they need their mom, they need their dad.

And I don't care if you hate each other's guts and, curse and say things outside of their presence, but. In their view, you need to work together. You need to be a united front and really try and dig deep and, and do this for the kids because they're struggling because of your actions here. So get it together is what I essentially said.

I just had a GAL appointed yesterday in a case and I think that in Chester County it has been an underused tool in Montgomery County.

It is a highly used tool, and I think that our county. Should start using them more because PJ's gonna tell you what a GAL is, what they do, and it's not appropriate for every case, but , pj, you're the expert 'cause you've been appointed 700 times in the past year and judges appoint you by the way, or attorneys can pick.

But it's a compliment to an attorney when a judge repeatedly appoints them. And PJ has earned that beyond because he has done such a good [00:33:00] job for all these kids that the judge is like, PJ's your go-to guy.

He's great 'cause he listens and he's kind and he puts his self in the kids' shoes. But tell us what the GAL does on a day to day . Well, thank you. It's one of my favorite parts of this job. And I'll summarize for purposes of today, but a guardian ad litem is essentially the representative and advocate for the child's best interest.

They have a couple different unique roles, and can be used differently in certain cases. But generally speaking, a judge will appoint a guardian ad litem in a high conflict case or when there's like a specific unique issue that the judge needs help getting to the bottom of. ' cause the judge can't leave the bench and go out and talk to the therapist and talk to the kid and talk to the, principal about, what's going on behind the school doors.

So the guardian ad litem really has. Not unfettered access, but I always say to , the parents, I can do whatever I want. I can talk to whoever I want and I can review evidence that won't come in in court. So , send me whatever you have. And the job [00:34:00] as I see it, is to really be the fact finder and then spoonfeed the information back to the judge on, Hey, here's what I've found, here's who I spoke with.

Here's my recommendation on what's in the child's best interest. So I also use the term like mini judge in the sense that. The guardian and the judge are guided by the same standard of figuring out and deciding what is in the kid's best interest. So I'll use that term with parents and I will always remind them that, I can only make a recommendation, what I say is not final and that's safe for , the person with the black robe.

But we are guided by the same principle, and I'm going to figure out what is best for your kids. And you might not like it, but it's about them, not you. And he writes a whole report that the court gets and it goes through all the factors and , what he has reviewed in some and what he has decided, in that factor.

Like there is no safety risk for either parent. But there is an issue with a whatever it is. So that's a whole written report that becomes a part of the court record. And he's in the courtroom just as much as mom and dad's attorney.

And that's why it's important for these high conflict cases because I think [00:35:00] my best way to describe it is when you have a high conflict case, your kids are carrying the weight of your divorce and custody situation on their shoulders, and you're suffocating them, and frankly, you're killing them. The job of the GAL is to try to take that weight off of them as best they can and try to get their parents' heads out of their asses, frankly, because your kids are the one who suffer.

Your fighting does not help anybody. It's hurting your kids. So stop. You think you're avoiding it. You think they don't know. Then you're a fucking idiot if you think your kids don't know.

They know. Even if you have the slightest day being off, you walk in and you're just like, Ugh. What's wrong, mom? They know. They know. They know. They know. So stop thinking. They don't know.

MIC1: When you were talking about that you tell the parents that the kid's gonna think that it's the parent that doesn't wanna see them. I immediately went to thinking about clients who have blamed the judge or blamed the, other party sometimes.

But it does seem like there are some people who just are always looking for somebody else to blame and then tell the children that, which I guess really goes to your point of putting the kids in the middle. But I find that to be [00:36:00] a very tricky place to navigate with clients when, things don't go their way.

In court, , how to explain that, without making it, a blame game about who to blame and who's at fault.

MIC2: If you can't look in the mirror, the court's gonna start seeing that. And it's hard to look in the mirror. I'm sure everybody in this room has been like, oh, , I was wrong. And that sucks to say I was wrong. Look. You've gotta see that you have some part of this. I said to this client yesterday, you helped create this monster.

You have created it. I can't undo it. You're gonna have to undo it. So number one, you have to give them direct feedback. You also have to remind them you picked this person. This is their parent. I understand you don't like them. I understand you wish that I could change their DNA, but that is their parent.

And that weighs more than people want it to make. And I don't understand it. 'cause I'm like, don't you want it to wait at your benefit? You want it to be important that you're the parent. So why is it not important that they're the parent? And so this is where you pay me to say what you need to hear, not what you wanna hear.

It doesn't feel good to say it. You've gotta suck it up and [00:37:00] say. This kid is okay with that parent and they don't like it. I, maybe they'll fire me, but guess what I said to them?

This is what you need to hear because the courts have told you they don't see this person as the big bad wolf. So you've gotta accept it because facts when cases, not lawyers. If your lawyers get the facts in and the judge makes their decision, that's all they can do.

If we were in a mediation and it's the blame game, I could say, look, this is not gonna go anywhere. So I appreciate that you guys have this tougher case and I wish you all the best, but we can end mediation after 20 minutes.

It doesn't mean you sit there for the two hours. 

One of my favorite jus e Jism. This one I credit to her and I use it very frequently.

And it's say something positive about the other parent. , We see a lot of high conflict cases, those are the cases where it's most important. , I don't care what you say to your new spouse behind closed doors or what you say to your best friend and group text message, but when you're in the room with a kid, say something positive.

I think one of the examples Julia has used is, Hey, your dad's really great at art that's awesome. That goes so far. And I think has really helped parents and children I'd never heard anybody else do that. And I find that interesting [00:38:00] because I've worked with a lot of really good lawyers and that was never a perspective.

And I know who you worked with and I know you've worked with some tough turkeys. Did you ever hear anybody take that approach in your practice? Not that I can think of or not as succinctly and, directly as you've put it, and again, it's one that I've latched onto, in addition to get a job, , I'm viewing this from the eyes of the child.

When you are with that child, Imagine what they're going through and they need to hear a little positive reinforcement, even if it's just as simple as that painting you brought home today from your third grade art class is beautiful and your dad's a great artist you must have gotten that from dad.

you must have gotten that from dad. That is simple and will go so far. I don't think people realize it.

MIC1: How do they usually take it when you suggest that

MIC2: Mixed. I think the default's probably rolling the is and f that like

MIC1: you don't get it.

MIC2: I don't get it. That's ridiculous.

Why am I paying you? But my hope is that they go home and sleep on it and then in the next week or so they'll follow through

MIC1: You plant that seed. Maybe when it's a less high conflict moment, they have it in their head to, oh, maybe I'll just try and see what happens.

MIC2: And I [00:39:00] will say if I die tomorrow, I've hopefully left that the family law system will be better because that's the goal.

But I have had people come back to me and to PJ's point, roll their eyes. I don't want a picture in my house. 'cause I've said to put a picture in the house and, um. Kara and I have a mutual friend, and that's actually where it came from, is from her house. When she left pictures up of her ex and anybody else would've taken 'em down.

I was like, that's really good of her. So that came from a friend's she didn't know she was doing it, but that's what it impacted me. I've never heard it go poorly when somebody does something like, say something nice about a parent or put a picture in their, the kid's room of the core family.

It has never been anything but a relief from the kid. And then hopefully it's like that, nudge that takes it on the slope towards better.

MIC1: Well, as we go into the holidays, maybe if anyone's listening,

it's a good time to do it. Put an ornament on the tree. Share a holiday memory or when they were a baby and you were all together or something. I don't know.

MIC2: in my house,

I make monkey bread every Christmas morning. I never knew what the hell Monkey Bread was [00:40:00] until I met Steve and the kids love Monkey Bread. And so if I was not in the same household and I was making Monkey Bread and the kids were like, I love Monkey Bread, I would be like, that's 'cause your dad taught me about it.

And Dad's Aunt Nancy was the one who made it. And so thanks to your dad, we have Monkey Bread every Christmas day. And keep in mind when I just said that, I didn't say he's the best. I didn't say I love him. I just said something that they have a positive thought about and that I credit him.

MIC1: and you're making it for them, for their traditions. It's not necessarily for yourself. This is their tradition, so I'm gonna keep it

MIC2: But on the flip side, how many people have we seen i'm not making fucking monkey bread. That's because that's your fucking dad. Did I kid you not? That is what happens. Then just fucking stop, saving for college, save for therapy.

That's what people will do more often than not. And it is frankly, deplorable and don't do it.

MIC1: So. if you're out there and you're listening, send

MIC2: the fucking monkey bread

MIC1: to fucking walk your Yeah. And send us a message. We would love to hear from our dozens of listeners. I don't know, half of them might be in the room right now, but if you give it a try

MIC2: calls.

No, it's more than Yeah, I've gotten

MIC1: We do hear from people, and this, it's all very sensitive and private, so I think not everyone wants to [00:41:00] like, send an email being like, hi, this is what I'm doing in my divorce. But if you're out there and you wanna send us a message, we would love to hear if Julie has helped or anyone here has helped

MIC2: yeah,

MIC1: Write us reviews. Reviews would be good. We only have one and it's from me, so.

MIC2: All right.

MIC1: have some subscribers. We could use more.

MIC2: I don't

MIC1: ever post anything on social

MIC2: media, so maybe I should do

MIC1: Maybe you should.

MIC2: yeah. All right. Well, we can figure out. All right. Thanks

MIC1: Alright, thanks. Alright, thanks everyone. This was fun.