EP 226 – Interview with Monica Mazzei on Mediation

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In this episode, we interview Monica Mazzei, a top family law attorney in California with almost 20 years of experience. She will give us the ins and outs of mediation – and how it can be a great tool to resolve even the most complex divorces. To reach Monica directly, here is her contact information:

Monica Mazzei
Sideman & Bancroft
415.392.1960
mmazzei@sideman.com
https://www.sideman.com/professionals/monica-mazzei/
San Francisco, CA

Find the full transcript of the episode below.

Shawn Leamon: In this episode, I get to interview Monica Mazzei. And she is one of the top family lawyers in California. She’s worked on dozens if not hundreds of really impressive cases with some super successful people in California. And in our episode, she is going to talk to us all about mediation, the ins and outs, how it works, how to make sure it’s a good fit for you, how to get the most out of it. And why mediation may be really useful for your situation and why it’s something that you should consider, particularly in a world in which many courts are still closed, or at least are extra slow in a pandemic world.

And mediation may be one of the only ways you can get your divorce resolved in a reasonable timeframe. And it’s a much faster process. It is a more private process and Monica is going to walk us through all of the details of that. And for you listeners in California as well, as an added bonus she may be a good fit for you. So just something to think about. Without further ado here’s my interview with Monica. So today on the show I have with me Monica Mazzei. An attorney and partner at Simon and Bancroft based in San Francisco. Monica, welcome to the show.

Monica Mazzei: Why thank you. Happy to be here.

Shawn Leamon: Why don’t you tell us a little bit about yourself, where you are, where you’re from, your legal background, before we get into the meat of today’s episode which is all about mediation.

Monica Mazzei: So my name is Monica Mazzei. I have been practicing family law exclusively for nearly 20 years. I started practicing family law in Beverly Hills. And for the last 15 years my practice has been in San Francisco and Silicon Valley. I handle the financial part of the divorce, but I don’t handle any child custody. So I have a pretty unusual practice in that way. And being in the Bay Area as you can imagine, I work with a lot of technology companies, high net worth clients, and really enjoy practicing family law.

Shawn Leamon: And I want to get into mediation in a moment, but is mediation the focus of your practice or have you done other things in the past? I just want to get a feel and set the audience up for a little bit of your legal background and expertise.

Monica Mazzei: So my practice over the last year has been transitioning from representing clients in a traditional way in the divorce, representing one party either in settlement conferences or in litigation. Now transitioning to serving as a mediator. So I work with both parties to help facilitate an agreement. Those parties usually have their own independent attorneys that they consult with. But I’m there as a neutral third party to tell them what the law is, identify the issues, brainstorm ideas, and help them work out an agreement outside the court system.

Shawn Leamon: So let’s talk about the mechanics of that. And I think it’s very useful to have had the background from the traditional perspective that now you get to work with both sides and come with creative solutions. Why don’t you tell us a little bit more of just what is mediation and how does it work? And it’s a topic that everyone knows about in concept, but a lot of people don’t really know the details of what is mediation like. You said you’re the neutral person, but you also mentioned something about people also have their own attorneys. So can you kind of set up the background on the basics of mediation for us?

Monica Mazzei: Sure. So traditional mediation is when two parties meet with the mediator, nowadays it’s all by Zoom. In the pre-COVID world it was in-person with just husband and wife and the mediator in the room. And the mediator doesn’t represent either person. The mediator’s job is to tell you what the law is, identify the issues and give you some ideas about how you could come to a compromise that will work for both people. That’s a traditional mediation. Another version of mediation is where the parties show up and they each have an attorney with them. And so it’s kind of a group effort, a group mediation. And that you see in cases where there might be more complicated issues or very high net worth estates. Might be more of a group mediation with the attorneys. But I would say the most common and the traditional way is just the parties and the mediator, the three people.

Shawn Leamon: What you see most of the time it sounds like so they show up for a session and you’re the neutral person. And then it’s the two people talking it out. Can you tell us just what a session is like? You said it’s by Zoom, but kind of paint the picture. So are there breakout rooms or is everyone on the same Zoom these days? Just give us the mechanics of that.

Monica Mazzei: Sure. So typically we’ll start out with everyone in the same Zoom room and talk about what the issues are to discuss that day, how the day is going to work. And then typically we will be in breakout rooms. So each person will have their own Zoom room and I will shuttle back and forth in between. Really depending on the couple, sometimes we convene throughout the day the three of us again. But a lot of people really like having their own space, their own Zoom rooms feel freer to say what they want to say or ask questions. So I find that I think the most productive way is for people to at least part of the day have some space in their own Zoom rooms. Sometimes a mediation will last from 9:00 AM to five, six, seven, 8:00 PM and we’re able to resolve everything in one day. In other cases it might take two or three mediation sessions that maybe don’t go quite as long to reach an agreement.

So really depends on what the issues are. Mediation takes two people that are at least willing to come to the table and have a discussion and a compromise. I think mediation has become very, very popular in family law over the last decade. But with COVID and the courts being enclosed I think I’m seeing a flood of new mediation cases. People realizing that the courts might not even be accessible and this might be the most efficient way to get their divorce resolved or their premarital agreement. I don’t always just mediate divorces but premarital agreements as well. And I think people are really recognizing the value in mediation. Not only the cost savings but the emotional toll that a long strung out litigated divorce could take. And are just becoming more conscious of how they’re handling the unwinding of the relationship in general.

Shawn Leamon: Yeah. Let’s talk about some of those last points. We don’t need to get into all the details of the cost and what that may look like, but can you compare why it may be less expensive than the traditional route?

Monica Mazzei: Well, in mediation you’re paying the mediators hourly rate one typically the mediator is an attorney. If going the non-mediation route, you’re each paying separate attorneys. You’re litigating which is expensive. It’s a very slow process because the courts are so backlogged. They are not very accessible. Even in pre-COVID days, you may have to wait months to get in front of a judge if you have an issue that you need heard. It’s just really not an efficient way to handle a divorce. And I think that many, many more people are going to be turning to mediation in the next couple of years.

Shawn Leamon: Well, let’s talk about the speed issue because that’s a very important one because we all know that divorces can drag on a year or seven sometimes depending upon the situation. Hopefully not that long, but it certainly does happen. If someone is in a situation and I know lots of people who are listening are in the preparation phase and they’re trying to figure out a lot of things, but one of them is how do I go about this process? And cost is always a consideration, time to get everything resolved is a consideration. But if someone’s just starting the process and they think they can go the mediation route with their spouse, how long does it take assuming they can work through their issues in a few sessions? Kind of start to finish what does that look like for someone and walk us all the way through?

Monica Mazzei: Sure. I mean I think generally if there’s not overly complicated financial issues, I think three to four months is a fair timeline in a mediation. You have to choose your mediator and that entails both people agreeing on the mediator to use. So as you can imagine if two people are divorcing, making a decision about what mediator to use could take a few tries. Both people have to have a consultation with the mediator together and make sure they’re both comfortable with that person and they both want to work with that person. And then it’s scheduling the mediation and there’s some paperwork also involved and getting the divorce process started.

But the great thing about mediation and now doing it online is it’s much easier to work around people’s schedules, the work schedules of the parties. I do many mediations that are after 5:00 PM because people have kids and Zoom school and jobs. So it’s a very flexible alternative. So I would say generally three to four months from start to finish from choosing the mediator, getting the paperwork in order and having a couple sessions and getting a settlement agreement.

Shawn Leamon: Versus a traditional agreement, which takes what do you see on average with your cases if you were just going to go the litigated route? A year, two years, how long does that go?

Monica Mazzei: I would say two years is a good average for my litigated cases. The longest case that I had was eight years. That went on eight years but yeah, I think the average is two years.

Shawn Leamon: Got it. No, I think that’s great. You brought up something that was interesting in your answer which was that the couple has to agree upon the mediator and choose a mediator that will work for them. It’s a big decision, how does someone choose a mediator? One is find a mediator, of course it’s hard to find a mediator. It’s a topic that we discuss a lot on the podcast. But how do they find one, how do they choose one? And if someone is… And kind of third part of that, if someone finds someone they like you, how do you convince your spouse to also show up to that person and take the appointment?

Monica Mazzei: Well, finding a mediator now we have all these resources online. There’s a great website called mediate.com that has a lot of family law mediators listed on it. It’s a great resource, there’s a lot of good family law mediators on that website. Word of mouth is also another good way. If you have a friend and they liked their mediator definitely check that person out. I think choosing at least two people to have a consult with or interview is a good idea so you have something to compare and contrast to. You both have to be really comfortable talking to this person, talking about intimate details of your marriage or finances.

So I always advise people interview two mediators. You want to make sure that the mediator that you choose has experience in the issues you need to address. So for example if someone has a really complicated custody issue, I’m probably not your person because I haven’t handled any custody issues in over a decade. But if you’ve got issues with stock options or private equity or just private investments, I have a lot of experience in how to divide those assets and value them.

So you want to make sure the mediator has experience with whatever your issues are. Maybe you own a family business together and has the mediator ever dealt with that before? You want to ask those questions of the mediator. You want someone that’s familiar with your issues. Because the great thing about mediation is when I’m mediating a case for example that involves a family-owned business, I’ve had to handle that issue in divorce cases so many times that I can give the parties a whole bunch of ideas about what other people did and how they resolved it. And it just kind of helps for people to hear what creative options are out there and what other people have done.

Shawn Leamon: It sounds like one of the questions to ask is have you dealt with situations like mine or do you deal a lot with situations like mine? Are there other characteristics to look out for in a mediator? One that may be simple which I don’t know the answer to is are all mediators former attorneys or attorneys active attorneys or judges or what other kinds of things should someone be looking out for as they make their mediator selection? And also are there any red flags that you may want to look out for as someone looks at different mediator options?

Monica Mazzei: So, in California you actually don’t have to be an attorney to be a mediator. So in family law you get a mixed bag of mediators. Most I would say are attorneys or were and others are more mental health professionals or therapists. I think it depends on what your issue is. If you have a lot of custody issues maybe having a mediator that has a background in child therapy or behavioral therapy is a good choice. If you’ve got some financial issues I think having an attorney that has experience in those issues is probably the way to go. Not all mediators are created equally. I think a red flag would be a mediator who doesn’t have any experience in family law that mediate personal injury cases and this is their first family law mediation. You might not want to be the guinea pig for that mediation. So someone that has handled family law mediations before.

Shawn Leamon: And to that point, I mean if you were to have a therapist help with the mediation or something like that, how in your experience do people actually write up the resolution to a mediation session? Because I imagine you’re going to come to an agreement at some point in the process, but then what happens?

Monica Mazzei: So if you have an attorney mediator like myself, the attorney mediator typically prepares the settlement agreement. So that’s what I do, once the parties have reached an agreement I’m the one that prepares the settlement agreement. I always advise the parties that they should each have an independent attorney review it before they sign it. And I would prefer that, but that’s up to the parties. So if it’s a non attorney mediator one of the parties is going to have to have an attorney prepare the settlement agreement.

Shawn Leamon: Yeah, you mentioned other attorneys involved and I want to shift gears and discuss that for a bit. Is so in your examples normally there’s of course the two people who are actively in the mediation session, the people getting divorced or negotiating a prenup or whatever the situation may be. But they may have their own attorneys as well. Can you describe how that interaction and interplay works between what now seems like five people I suppose in this example?

Monica Mazzei: Sure. So when we have a mediation where both parties have their attorneys actively involved in the mediation session, it looks pretty similar. So for example if we’re on Zoom, we start in one Zoom room altogether and typically talk about how the day is going to be broken up or what we’re there to discuss. And then each party will go to a separate breakout room with their attorney with them. And I shuttle back and forth between the rooms. Cases where an attorney… The parties might want their attorneys to be involved, sometimes if there is a big disparity in experience, if one person has been running a business or is very financially savvy and the other person is not, maybe that is a good place to have attorneys present. Because again, the mediator doesn’t represent the parties. So if there’s a big disparity that might be really helpful to have attorneys there. In family law cases sadly, there is more common than I would hope abuse issues do arise, domestic abuse issues.

That’s another case where perhaps it’s appropriate for the attorneys to be involved when there’s that dynamic going on, just to make sure that the victim, the abuse victim, is feeling properly represented and someone is there to make sure that they’re being advocated for. And then I think the third situation would be really complicated financial issues. Any divorce case involving a hedge fund, a venture capital fund, a private equity fund, those cases typically attorneys are going to be more involved because they’re very detailed financial issues that at least one of the parties might not be familiar with. Those cases typically the attorneys are going to be involved during the mediation and present for them.

Shawn Leamon: That’s a good segue. I know some attorneys who aren’t big fans of mediation sometimes and they’ll say, no, no, no, no, no, no, no, no, no. If you have complicated issues and you can’t deal with them in mediation, we got to subpoena this and fight that and do this order and that whatever. How do you handle complex issues in mediation? And is it a good forum? How does that work itself out? Because I know some people rightly or wrongly may think it’s not applicable or not feasible in a mediation session to come up with solutions for some of these things.

Monica Mazzei: It all depends who the mediator is. I think that mediation is a great way to resolve cases involving those types of businesses and those types of compensation. If everyone involved has the same experience level including the mediator, you can really cut through a lot of the education of a public sitting judge, for example who doesn’t know how hedge fund managers get paid and doesn’t know what carried interest is. If you have a mediator that you don’t have to educate that knows how everything works, you can hit the ground running and start negotiating a lot sooner than you would ever get in the court system. And there’s also accountants involved and in those cases, there’s a big team of people, but it is a great way to settle cases involving those businesses. If the mediator is financially savvy enough and has experience, it really is efficient and you can really come up with some creative out of the box solutions.

Shawn Leamon: And so it sounds like even though mediation can be faster and there’s a lot of benefits to it, it sounds like you can still bring in a lot of the traditional divorce resources that you would use perhaps in a litigated manner but it’s just not the same atmosphere in which you may have valuations, you may have different things you have to do with stock options or figuring out what’s going on with the hedge fund or private equity fund. And you may need to bring in some other financial professionals, it’s just the context. And the way that you end up at a resolution is just different and a lot more efficient and streamlined.

Monica Mazzei: Yes, more efficient, less adversarial. But I think there’s a misperception sometimes in the public that mediation is like everyone’s sitting around the table, holding hands, singing songs and it’s too touchy feely, how can you possibly resolve a complex case with a hedge fund that way? And it doesn’t really work that way. Mediation can definitely deal with high level complex issues. Just because it’s mediation doesn’t mean that we are throwing out all the rules and how things work and it’s just reaching an agreement. One, that works for everyone and two, is a lot more efficient.

Shawn Leamon: When coming up with an agreement a lot of times you’ll hear or someone will say well, the judge will say this and that’s the guiding principle for how people come up with a resolution. Is that the case in mediation? What I’m getting at is there’s the letter of the law, but the letter of the law isn’t always clear, but a lot of times people say, “Well, what would the judge say? What if we just took it out?” And that’s kind of their position. Or is there some flexibility in mediation? How does that dynamic play itself out?

Monica Mazzei: Well, the great thing about mediation is people can agree to anything that works for them. When you go to court and you go before a judge and in family law in California we don’t have juries and family law. So you have one judge that makes the decision. In my experience, both people leave the courtroom not happy with the decision. Both people, they have no say in shaping it. Sometimes you get a judge who woke up on the wrong side of the bed or who didn’t understand what the issues were and totally got it wrong. Mediation gives the parties an opportunity to have a say in the resolution. And they often will say well, what would happen if we went to court? And so I do give my opinion. Well, the law says this.

But I always like to follow it up with, but let me tell you what some other people have done in mediation with the same issue and give them some ideas to start thinking outside of the box and a way from maybe just what the law provides. The law is not flexible, it doesn’t conform to the differences in families and how a particular family works. And it’s very cookie cutter. And I don’t think that necessarily works in a divorce situation. In mediation you can really get creative. As long as we’re staying within the tax code and things like that, we really can come up with anything that works for that particular couple.

Shawn Leamon: And on the other side, what about privacy? I imagine that in a mediated session you don’t have to just… I mean you disclose things with your party as part of the process, but what kind of public information gets disclosed in mediation versus a traditional process?

Monica Mazzei: Everything in mediation is confidential. So unlike if you’re in court, you’re in a public forum. Sometimes there could be 30 to 40 people sitting in the courtroom, hearing all about where you live and how much money you have and your kids’ names. It’s a very public way to go through a divorce. In mediation, no one is there except for the two of you and your mediator and perhaps your attorneys and everything that you say in the mediation is confidential. And there is very little paperwork that has to be filed with the court if you’re in mediation. So the petition to start the process and we’re even able to submit a confidential settlement agreement to the court. So very, very limited paperwork in the court system. But I think more importantly you’re not in a public forum and you’re in a conference room or on Zoom with the mediator.

Shawn Leamon: And so we’ve gone through a lot of the basics of mediation and I want to get to a couple of concluding questions. The first is what happens if mediation doesn’t work, what happens then?

Monica Mazzei: Well, if mediation doesn’t work then the parties will have to each get an attorney if they don’t already have one and decide what their next step is. Are they going to try to just negotiate through the attorneys and not use the mediator at all? Or are they going to go the court route? Which to me is always a last resort. I think the cases that fall out of mediation are the cases that were just not good cases for mediation to begin with.

Shawn Leamon: And I think that’s a great transition to my last question or one of my last questions is someone’s thinking about mediation, I think it’s a very compelling and I believe a lot of people after hearing this will say this is a really compelling option. If someone is thinking about it, how would they know if they’re a good candidate for it? Why don’t you just kind of go over those key points to say like yeah if you’re in this situation here’s how you know that mediation may work for you or may not work for you, but can you kind of go through that?

Monica Mazzei: Mediation takes two people. You can’t force someone to participate in it. So that is going to be the big telltale sign. Is, are you both like-minded? Do both people want to go the mediation route and are they both going to be engaged in the process? If you feel like you’re dragging someone to mediation kicking and screaming, that’s probably not a good case for mediation. Both people have to be willing to say, “This is horrible, going through a divorce is horrible, but we both don’t want to go to court. So let’s pick a mediator and use this alternative. I still don’t like you, but I’m willing to go to mediation.” So fundamentally that’s not going to be the situation for everyone. If you’re met with resistance, then you’re not going to have an option. And in my experience trying to force someone or cajole them into mediation you’re just setting yourself up for failure and probably a waste of time.

Shawn Leamon: So mediation doesn’t have to be easy, but both people are going to need to agree to it?

Monica Mazzei: Yes.

Shawn Leamon: Well, Monica if people want to reach you, particularly the California listeners, what’s the best way for them to do that.

Monica Mazzei: They can email me at mmazzei@sideman.com. 

Shawn Leamon: Excellent. And do you work all over the state in the Zoom world?

Monica Mazzei: Mainly just California, I’m only licensed to practice in California. I can handle mediations outside of California, but I wouldn’t be able to prepare the settlement agreement.