Is Mediation Right for My Divorce?
January 26, 2021
Below is a transcript of the video interview.
Given the long history of Sand Hill helping individuals navigate the financial aspects of divorce, we thought it would be helpful to hear from a highly accomplished Bay Area family law attorney about the mediation process. We were very fortunate to have some time for questions with Geniveve Ruskus, a partner with a Palo Alto boutique law firm, Lakin Spears.
Geniveve is a certified family law specialist who is exclusively practiced family law over the last 20 years, and is well well-versed in all aspects of the dissolution process; however, Geniveve’s primary role these days is as a mediator. Geniveve is one of the founding members of the Northern California Mediators Round Table, and is currently serving as the president of the Northern California chapter of the American Academy of Matrimonial Lawyers. She's also been named California's “Super Lawyer,” each year since 2006. And is frequently named as Northern California's “Top 50 Women Lawyers” across all practices, including year 2020.
Let's meet Geniveve Ruskus. All right. Hello, Geniveve. How are you? Welcome to the Sand Hill Interview Series and thank you very much for your time today.
Geniveve J. Ruskus:
Thank you so much for having me.
Jeffrey:
Great. We’d like to talk a little bit today about mediation and we have a handful of questions that our clients often come to us with and we just want to explore is mediation right for them? First of all, what is mediation and how does it compare to some of the other divorce processes?
What is mediation?
Geniveve:
Yeah, that’s a great question. I’ve been mediating for just over 20 years. And I would say that in the course of that process, I’ve learned that mediation is not always the same, but in general, at its heart, it is an election to resolve disputes by the parties directly with their goals and interests in mind. And using the help of a facilitator, such as a mediator. The difference, the core difference between mediation and other processes, is that no one else is making decisions. Nothing can happen to you in mediation. The only way that there can be a resolution is if both parties agree. That’s really the fundamental difference, it’s a consensual dispute process.
Jeffrey:
Another question we often get is, what does the process look like? Maybe just a little bit of how the process plays out.
What does the mediation process look like?
Geniveve:
Understanding that every case is very different. I get that question in a lot of first meetings, and I think it’s helpful to people to sort of know that there is some structure around the process and that most mediations fall into a certain pattern. And so the way I like to describe it as that there are essentially five stages of a typical mediation.
The first stage is opening the case and selecting the people you’re going to work with. Right? It's deciding is mediation right for me? Is another process better? Who are the advisors I'm going to work with that are going to support me through the process? That's kind of stage one.
Stage two, I like to call ‘achieving a simmer’. And what that means is we want everything to be calm, in terms of how are bills getting paid? Where are the kids? Is there anything flaring up between the parties that's interfering with their sort of ability to make decisions?
The third stage is information gathering. And that is both the court forms that are required, and it’s also the customized fact finding that we do in each case to get the parties ready for stage four, which is negotiation and option development, right? That’s where you're starting to put the structure of the agreement together. And you’re learning more about the goals and interests of the parties. And you’re trying to find a solution that is actually going to make the pie bigger, right? That’s stage four, that’s a critical stage.
And then stage five is really making it formal. A lot of people say, well, if we reached an agreement in mediation, is that really binding? And the answer is, yes, it’s documented and filed with the court just like another type of divorce would be. And that’s the fifth step.
Jeffrey:
In thinking about the mediation process, what is the goal of the process actually? And if someon’s thinking about, or maybe what the pros and cons may be from that, what are some of those things that should be a top of mind for clients?
What are the goals of mediation? What are its pros and cons?
Geniveve:
What I would say is, at its best, what mediation does is it finds solutions that work best for the two people who are involved, right? Not what some court would think was the best solution, or what some lawyer would think was the best person, but actually what is best for the family, according to the people who are in the family. And so that’s really at its best, it’s a cheaper, quicker process to get to a result that is more customized and tailored to the needs of the parties. That's what I love about it, is that there's just endless opportunities for creative solutions.
It’s not for everybody. I mean, I would say that the disadvantage of it would be that if direct engagement between the couple is too difficult, too painful, too raw, it’s not the right process for you because it does involve a lot of communication directly between the people. And so if for whatever reason that’s problematic, then it’s probably not the best process for you.
Jeffrey:
Yeah. And probably the most often asked question is how long does the process take? Which I know varies, but generally speaking, and maybe how does it relate to other processes? Is it the same? Faster, slower?
How long does mediation usually take?
Geniveve:
Yeah. Again, at its best, it’s going to be your fastest option. And that’s because everything is really in the control of the parties and we’re not waiting for outside schedules like court hearings and things like that. What I tell folks is that if the issues are simple and they're able to resolve them quickly, then a great goal would be about four to six months, with six months being the waiting period for a divorce in California anyway. The goal would be to get everything done, all five of those stages before the six month waiting period has passed.
And I would say about half of my clients, maybe a little bit more, do come in that range. The other half take longer, and that is for a variety of reasons, but you do see some cases that go longer. The good news is that all of these options are much quicker than a typical litigated outcome where you could be years, literally years. And sometimes people are going to court not once, but many times throughout their children’s lifetime. And then you’re talking about a tenure process.
Jeffrey:
Right. Oftentimes we get questions about what’s the mediator’s role and, is it required or is it advised to have an attorney in addition to the mediator? Or how do those roles play out?
What is a mediator’s role? Does an attorney also need to be present?
Geniveve:
There are a lot of different kinds of mediators out there. What I am is I’m an attorney mediator, which means I’m a family law specialist, I practiced family law for many years before becoming a mediator. There are also mediators in the community that have a mental health background, or just a general coaching background. There are different kinds of mediators that work better for different kinds of couples.
In my view, a good mediator, what their role is, is to help the parties enter into these five stages I talked about, right? You’re providing structure for the process, you’re giving support where it’s needed, you hopefully have a lot of experience in dealing with interpersonal dynamics of couples going through this, and you’ve got to be nimble. Right? My thing is I’m extremely tenacious and I really firmly believe that almost any settlement is going to be preferable to the tenure court outcome.
You want a mediator who will be able to sort of bob and weave with the parties in the process. In terms of the question about consulting attorneys, that’s a great question. I get it a lot. It’s optional. California does not require independent representation in a divorce, interestingly. It’s really up to the parties in terms of what’s going to help them feel the most supported. My thing is that I want parties to work with people who fit well with them, who are qualified, and hopefully who are friendly to the mediation process.
Jeffrey:
And then if we’re trying to think of either friends, or family, or clients that maybe are contemplating going this route, is there an ideal candidate for someone going through it, or a couple going through it, and maybe even just as important, is there someone who is not, that would maybe want to stay clear of it?
Who should pursue mediation? Who should avoid it?
Geniveve:
That’s a great question as well. To me, the best candidates for mediation would be people who once they learned about the process alternatives, it appeals to them, right? People tend to self-select into this process. Maybe they’ve heard horror stories with friends or family who had difficult divorces, and they want to save money and time. Almost everybody wants to save money and time. It has a broad appeal for a lot of folks.
The people who I would not recommend for mediation would be, for example, if there was domestic violence in a relationship, or if there are extreme distrust issues. What I tell folks is, look, mistrust, disappointment, anger, all of those emotions are common in divorce, but if you think that the other person is capable of, for example, falsifying a tax return, to me, that’s my litmus test. If you think that the other person would literally commit fraud, then you probably think they would commit fraud on you as well. And so mediation is not going to be a good process for folks like that.
Jeffrey:
I have one more question for you, that is, I think I know the answer, but I might be biased, but is a financial professional helpful in the mediation process? And also, are there other professionals that someone who’s going through the process who should think about either hiring on or connecting with, at some point in the process?
How do financial advisors fit in the mediation process?
Geniveve:
You should know, because I work with you in your office frequently, and you guys are super helpful. Yes, financial advisors are invaluable as support people for the mediation process, and really divorces in general. I would say that if there’s an existing financial advisor in place, that’s my go-to place to find out what’s the makeup of the estate? What's the cashflow look like? Even getting some sense of where the party’s risk tolerance lies and questions like that. An existing financial advisor is fantastic. It’s a wonderful resource.
If there are not financial advisors, or if the parties want to get maybe an additional financial advisor, right? Sometimes we’ll bring in new financial advisors into the process. And where they can be really helpful is in terms of the planning, right? That stage four of option generation and option evaluation. The financial advisors are the people that are going to be able to work with the client to determine affordability, feasibility, security, all of those very individualized questions that clients need a lot of help and support on, that’s where that expertise really comes in handy.
In addition to financial advisors, the other professionals that I frequently work with would be tax accountants, family law forensic accountants, real estate professionals, estate planners. And then, on occasion, we’ll bring in someone with a specialized area of expertise. I kind of consider myself to be the quarterback. As the mediator, what I’m trying to do is assemble the dream team for the parties to get them educated and ready to dig in and hopefully resolve their case.
Jeffrey:
Thank you so much, Geniveve, for your time today. I think all of these questions will be helpful to those who were trying to explore whether or not mediation makes sense for them. Thanks again, and hope to see you down the road a little bit.
Geniveve:
Definitely. Thanks for having me.
Jeffrey:
All right. Thanks. Bye bye.
Disclosure:
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