Mediation can feel confusing, intimidating, and wildly misunderstood, especially when you’re being told you “don’t need a lawyer” because you’re mediating.” That’s exactly why I invited my good friend and colleague Susan Guthrie back to the show. Susan is going to help break down what mediation actually is, how it works, and how to protect yourself in the process.

Susan is a former family law attorney, longtime mediator, and the host of the podcast Divorce & Beyond. She’s also my go-to expert when my clients have questions about mediation. In this conversation, Susan and I walk through what mediation really looks like from the very beginning, why mediators are not judges, and why having a consulting attorney is still essential even if you are fully committed to mediating. 

When you are mediating, the only people who make decisions are the people getting divorced. Nothing is decided unless both of you agree, and that’s what gives the process its power. When mediation is done well, it creates space for clarity, informed choices, and agreements you can actually live with, not decisions handed down by someone who doesn’t know your life.

What you’ll hear about in this episode:

• Misconceptions about mediation and why many misunderstand the process (3:36)
• Why you must have a consulting attorney, even if you are mediating (15:40)
• Different forms of mediation, including the benefits of shuttle mediation (27:08)
• What the mediation process actually looks like from the start (46:40)
• Bringing other professionals into mediation can save time, money, and conflict (51:54)
• How to know when mediation is not working and who gets to make that decision (55:24)

✨ If you’d like to watch the video version of this episode, you can find it here.

Learn more about Susan Guthrie: Susan Guthrie, Esq. is one of the nation’s leading voices in family law and mediation. With more than 30 years of experience as a top divorce attorney, mediator, and trainer, Susan has helped thousands of individuals and families navigate separation with dignity, clarity, and compassion.

As the creator and host of the award-winning Divorce & Beyond Podcast, Susan has built one of the most trusted platforms for real conversations about divorce, healing, and new beginnings. Her expertise and approachable style have made her a sought-after media expert, featured on The Oprah Podcast, NewsNation, NBC’s Chicago Today, and numerous other national and regional outlets.

Beyond her media appearances, Susan is a respected educator and speaker, regularly training professionals in mediation, communication, and practice development across the country. She is also a best-selling author, sharing practical insights that help individuals and professionals alike navigate change with confidence.

Susan’s work bridges legal knowledge, emotional intelligence, and innovative thinking — helping people not only end their marriages more peacefully but also begin their next chapters with purpose.

Resources & Links:

Get Your Curated Podcast Playlist
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The Divorce Survival Guide Resource Bundle
Phoenix Rising: A Divorce Empowerment Collective
Kate on Instagram
Kate on Facebook
Kate’s Substack Newsletter: Divorce Coaching Dispatch
The Divorce Survival Guide Podcast Episodes are also available YouTube!

Susan’s website
The Divorce and Beyond Podcast

Show Transcript:

Kate Anthony: [00:00:00] Hey everyone. Welcome back. I have with me today one of our favorites, fresh from Oprah Winfrey. Okay. She went from Oprah. To me, I’m very honored that Susan Guthrie is back on the show today. You know Susan, she was a family law attorney for a few decades, and mediator, she trains mediators or she did.

Now she’s moved on to all sorts of other wonderful, amazing things, but our go-to expert on all things, the law and divorce. Susan Guthrie is back with us today. Yay, Susan. Thank you. 

Susan Guthrie: It’s always good to be with the Divorce Survival Guide family and Kate. I’m so happy to be here. 

Kate Anthony: I am so happy to have you back.

Less people think that like Susan and I aren’t friends [00:01:00] anymore. The problem is we’re friends. We just keep forgetting to talk about. Business things. Exactly. So I brought Susan on today to really break down the biggest confusion that my clients have is how mediation works when mediation works.

Should I mediate? Should I do, I need an attorney, but I don’t need an attorney. ’cause we’re gonna mediate all of these things. We are gonna break all of this down today so that you have no more questions, hopefully about mediation and how it works. 

Susan Guthrie: And there’s nothing out of the norm about your listeners being confused about mediation.

It is one of the more confusing issues for people who are facing divorce. People have a lot of misconceptions about what it is and a lot of maybe apprehension [00:02:00] about it because they don’t understand it. So I’m really glad we’re pulling that curtain back so that people know what a great option it is, and it really is.

Absolutely. Yeah. All right. 

Kate Anthony: So what are some of the misconceptions that people have, Susan? 

Susan Guthrie: Oh gosh. I think there are more misconceptions than there are conceptions, shall we call it. Yeah. Unfortunately, mediation, I would say the word or the idea of the process has become, I’ve practiced for 35 years.

It has become infinitely more knowable as something that people can do if they’re getting divorced. But unfortunately, that for many people is where the understanding of it ends. And so I always start with a high level understanding because people really don’t, they see it as something very different than what they see as the normal divorce process, right?

Like litigating, hire an attorney, go to court, do those things, and [00:03:00] really. It’s just an alternate path to the same end. It really is. When you go through divorce, anyone going through divorce at the start, everyone is looking at the same needs. To get to the finish line, you have to identify what the issues are in your divorce and you have to come to an understanding and resolution on those issues, meaning an agreement, or if you can’t agree, which is a very tiny percentage, less than 5%, you’re going to go to court and a judge will decide. But so there really just alternate paths to get to the same end. 

Kate Anthony: And which is getting divorced? 

Susan Guthrie: Is getting divorced with all of the issues resolved. That’s the key. Yeah. You can’t get divorced. And that’s maybe another misunderstanding. You cannot get divorced except in your weirdo state of [00:04:00] California where you can bifurcate bifurcation, right?

Yes, you can. So putting that aside, you can’t get divorced until there’s an agreement or a judgment on what’s gonna happen with your money, what’s gonna happen with your debts, where your kids are gonna sleep at night, those sort of things. So everybody facing divorce has to come up with a method for resolving all of those issues coming to those agreements. And mediation is an alternate method. 

Kate Anthony: Which it is one of the methods. It is the most, it’s actually the most common. It is. Ultimately the one that most people end up using correct? 

Susan Guthrie: Negotiation is the one that most people use. When I said earlier, less than 5% of people go to trial, meaning they couldn’t resolve their issues.

The other 95 plus percent somehow negotiated settlement of all their issues, [00:05:00] and that’s either done through their attorneys negotiating or through them negotiating somehow. Gotcha. Negotiation being one of the ways of negotiating. Exactly. Exactly. Okay. 

Kate Anthony: Increasingly popular. 

Susan Guthrie: I will say, 

Kate Anthony: let’s just go through, the ways that you can get divorced, right? The first one, the least contentious perhaps, is when you sit down at your kitchen table and we call it the kitchen table divorce, and you just hammer shit out together. Which I would also say 95% of people can’t do. 

Susan Guthrie: At least 95% of people and there’s good reasons why, and absolutely a couple of good reasons.

One, you’re emotional and if there’s no one there trying to help calm the water, when the two of you are emotional, your decisions are probably going to be made out of that emotion and aren’t going to be very good ones, plus. Frankly, you don’t, when I talked about all those issues that you need to resolve, you don’t know what all those issues [00:06:00] are.

You may know at a high level, we’ve got a house, we’ve got some kids, we’ve got some retirement plans, but you don’t know all the sub issues. You’ve worked through divorce judgments, you’ve looked at people’s marital settlement agreements. There are 30 to 50 pages for a reason. It’s not because there’s just these three main topics that you resolved.

You keep the house, I’ll keep the retirement, the kids will go back and forth between our houses. Not really all there is.

Kate Anthony: Most people’s lives, finances are much more complicated than that and just. Retirement alone requires a very specific way of dividing that, to avoid the tap tax implications, you have to have a quadro, like there’s a whole host of stuff just in that.

Which seems like it should be simple. That’s a great example. That’s a great example. Oh, it should be simple, 

Susan Guthrie: right? Like a Oh, pension is divided differently than an IRA is divided differently than a 401k is divided differently. And if [00:07:00] all those things sound mysterious to you, listening to this, that’s a very good example of all of the sub-issues that come in under one tiny topic.

And that’s not all of them, but that’s a few of them under retirement. 

Kate Anthony: Yes, exactly. And also, oh I’ll keep this house, you keep, our, the other house. Can either one of you afford to, can you qualify? Not usually can you afford to buy the other out. Can you qualify for a refi? To for a new mortgage to buy the other person out.

And very often not, and often your attorney isn’t even thinking about those things. They’re just thinking about the dividing and conquering and nobody’s saying hold on a minute. That’s sounds good on paper, but do you even qualify? Can you even buy them out?

Susan Guthrie:  Are you really thinking it through?

Yeah, that decision, I, the house one is such a common issue. Yeah. It’s such, it’s [00:08:00] always a major issue and it’s almost always made when people are speaking to their spouse about how they want to manage that. It’s almost always managed or discussed from an emotional. Place. Yeah.

Not from a practical place. And I understand it. You sure. Our homes are near and dear to us, but they are the usually the biggest asset of a marriage, and they are usually the biggest debt of a marriage. That’s right. And that means you need a much more focused view of what works and what doesn’t.

And again, going back to the mediation process one of the things I love about the process that I think people don’t understand is that it’s very, I call it curable. Meaning we can bring in whatever professionals or whatever support that individual couple needs to help them. Explore all those issues.

There are specialized mortgage divorce, mortgage professionals. [00:09:00] There are C dfas that can help with, what works on a budget going forward. Can you afford it? Right now, we have a lot of issues around the fact that mortgage interest rates are sky high, not like the ones that may be already on your home.

Yeah. So there’s so many people you may wanna bring into that conversation, and mediation is very malleable to be curated, to bring in just who you need at the table. And for as long as you need them. And then when their part is done they can go off and help the next couple.

Kate Anthony: And so the, we were talking about kitchen table negotiation, right?

Yeah. So that’s the, that’s one it, that’s if you have. No assets, very little debt and just, don’t own property. All of that. If it’s really simple, it’s okay, let’s just decide. And if you’re very amicable, let’s just figure this out. But even if you’re amicable, if you have complicated assets and liabilities, then you probably, you can [00:10:00] talk about it with each other, which is awesome. But you’re gonna need professionals to help you through it. 

Susan Guthrie:You should have it, you should have that guidance. And I’ll say, yes, you can talk about it, but you may wanna wait until you talk to the professionals before you make agreements. I can give you an example of a successful kitchen table divorce.

’cause I had it come through the door once. 35 years. Once I had a young couple that had gotten married, they had never actually really lived together. They were getting divorced. And when the wife called me, her biggest concern was he had spent a lot of money on video games and she wanted to know if she was entitled to some of them.

’cause they had cost a lot of money. That was their main issue. They’d never m co-mingled their assets. They hadn’t been married for very long. They, had always paid their own bills. And really her main concern was that he had purchased a lot of expensive, now used video [00:11:00] games aren’t worth actually all that much.

And once we had that conversation, she’s oh, I don’t care about that then. That couple worked it out at the kitchen table. But if you have a child, you have a home, you have credit card debt, any of those more, significant factors that will follow you beyond the divorce. You want some professional help and guidance.

Kate Anthony: Yes. One of the things that I, because I work with so many women who have been experiencing domestic abuse of some form, their husbands will very often come to them and say, we don’t need lawyers. We can do this. We can figure this out. Now, if you have been in any form of a victim of any form of domestic violence, a domestic abuse, whether it’s emotional abuse or financial abuse, or any of those things, the answer to that is no.

The answer is no. I’m not saying you have to litigate. I’m not saying that you wanna take it all the way to a judge. I’m saying that you have to have an attorney advising you [00:13:00] because you can’t trust this person. If he’s trust me, you and I can work everything out. He’s probably hiding shit.

Susan Guthrie: And he’s leveraging the control that he has and the power that he has in your relationship to get you to assess to what he wants. And we say he, ’cause that’s the normal aggressor in these situations. And you need an attorney, but you don’t necessarily need the attorney standing by your side at all times that, yes, as you just said.

You can still work through a lot of these things without having to get in front of a judge. 

Kate Anthony: A hun. Absolutely. Absolutely. So the next the next sort of face form of this negotiation really is mediation. We also have collaborative divorce. We’re gonna leave that aside ’cause I’ve had a few episodes on collaborative.

We’ll link them in the show notes so you know the difference. There is a difference. Collaborative [00:14:00] divorce, capital C, capital D, collaborative divorce TM is distinct from, we wanna have a collaborative divorce, right? Yes. There’s the descriptor and then there is the actual title of the format which is very specific in terms of mediation, which is what Susan is an expert on.

That’s where I wanna focus, one of the things that I am constantly telling people and they are very surprised by, is that they should have a consulting attorney even if they’re mediating. Yeah. Yes. In addition to your mediator, you must, who maybe an attorney who may be an attorney, but they’re not your attorney.

You must have a consulting attorney. Can you break that down? Why Susan? Such a key factor

Susan Guthrie: and I will tell you, in the years that I mediated all the years that I mediated, I, from the [00:15:00] moment I first had a consult with a couple till the very last day, I was with them as their mediator. I suggested to them and strongly urged them to have consulting attorneys.

It is something that, if they didn’t get one from the start, it was something that I can continued to raise throughout the process because. The biggest thing that people, and maybe this is the number one misunderstanding about mediation. So they go together. The number one mis misunderstanding about mediation is that your mediator is a quasi judge.

That they are going to listen to what the two of you have to say and or your attorneys like in a courtroom. And then they will make a decision about what you are going to do like a judge does. And that’s absolutely not what a mediator does. It couldn’t be further from that, in fact.

And I will tell you, it’s not just the couple that make that [00:16:00] mistake or have that misunderstanding. I see attorneys all of the time who come into mediation, who conduct themselves in a way as if they are advocating for their client to the mediator. As if the mediator were in the judge’s role. And I think it’s because they’re very conditioned to that.

Sure. To that role, but ultimately what I want people to understand, and this is such a good thing, so I’m gonna say it slowly and carefully. The only people who make decisions in a mediation are the people getting divorced. Let me say it again. Say it again. The decision makers are you the people who are getting divorced and it takes both of you.

So that situation you were talking about earlier where the husband is leaning on the spouse to her, perhaps make agreements that she may not want to, if [00:17:00] she doesn’t agree, there is no agreement. And so in that process of reaching those agreements, he will quickly learn in a mediation that’s being conducted properly.

That he has to work with the spouse to problem solve, to come up with solutions in order to come to agreements. That is the goal. It’s not that the judge mediator is going to turn around and say, oh, sir, you make so much sense. Let’s give you everything and give her nothing. That is not mediation.

Kate Anthony: That’s right. A mediator is, and this is an incredibly important distinction, I think most people miss as well, a neutral. They are a neutral party who is helping the two people involved come to agreement and consensus on really complex. Issues. Which is why you [00:18:00] must have a consulting attorney, because if you don’t know what you’re mediating towards.

You have no idea what you’re supposed to be, what you’re quote entitled to. The mediator can give you legal information, yes. Such as in the state of California, x and Y might apply, but they cannot give you legal advice. They cannot say to one party or the other I really think that you should be asking for X or Y or you might consider giving this, and then maybe she’ll give that like Uhuh, right?

Susan Guthrie: Very good explanation. By the way. I can tell you’ve spoken to mediators young lady, but that is exactly it, right? Yeah. So when I practicing attorney for years, I would sit down with my client. We would talk about say, spousal support, and I would say you, we should be asking for this, negotiating toward that.

This is the goal that you wanna get to. You were talking about why you want an attorney. We’re looking to sustain you through the first [00:19:00] five years after your divorce so you can retrain, get job ready, whatever those things, right? Like you work out a strategy with your attorney, with an understanding and with legal advice, meaning advice based in the law from your attorney, right?

Your mediator who may be an attorney is not there to give you that type of advice. They’re not, because you wouldn’t want them to your attorney, right? You wouldn’t want them to because then they turn around and give that same but alternate advice to your spouse. They are there as a mutual support system at the table for both of you.

Now, when I say mutual support, they’re su. They’re there to support both you and your spouse through understanding what those issues are, talking about the different ways you might resolve them, giving you that neutral information about what the law might say. Always reminding [00:20:00] you that just because it’s what the law says, you two can agree to do something else.

Which is another huge benefit of mediation. But also. That support may be a little different because very often the people need different things from their mediator, and good mediators are there to support both of you. It’s a benefit to both of you to have that good mediator, because if your spouse needs, one type of approach, a little bit more information on one thing, a referral to a good coach, something like that’s gonna get them ready to come to the table and negotiate well, yes.

And get you through this process. And so your mediator is there to support both of you, but that support does not always look exactly the same. 

Kate Anthony: That’s a really good point. Because. Very often, we’re talking about this in a sort of both people come to the table within the same maybe [00:20:00] emotional space or psychological space.

Yes. This will work really well. And sometimes one person is an emotional wreck and needs a different kind of support through the process. And sometimes that support is, we gotta call it for today ’cause this isn’t going anywhere. 

Susan Guthrie: Absolutely. And the call it is very often when a topic comes up that they need legal advice on.

So often in my phrases, in my mediation, if anyone out there is listening, who, whoever mediated with me, they heard this all the time, let’s put a pin in it. Let’s put a pin in it, let’s. Let’s write down where we are. Let’s memorialize the questions. And then you take those questions, you go to that consulting attorney who is there to give you legal advice, and then when you come back to the table, [00:22:00] you are ready to move forward on that issue because now you’ve gotten that support you need.

Kate Anthony: That’s right. And this is why it’s really important. A lot of, like my clients I was speaking with someone recently who didn’t know that they could say in mediation, Hey, you know what, I gotta actually run that by my attorney. I’m not sure about that. This is your mediation. You are not agreeing to anything that you don’t completely and fully understand the legal implications of.

So absolutely. Put a pin in whatever needs to be. Have a pin put in it. 

Susan Guthrie: Pins are important. I explain this as the mediator. I will explain to couples that it is far better to put a pin in it. Go get the information and the answers that you need, and come back and feel capable and ready to make decisions and agreements than to agree to something.

In the room. Go talk to the attorney after who’s no, you didn’t wanna do that. You should have done this. [00:23:00] And then come back to the table and say, you know what? I agreed to. I’m undoing that agreement. 

Kate Anthony: Yeah, that’s what it throws the whole thing off. And you could end up in court at that point.

Susan Guthrie: Yeah. Not for any other reason other than you didn’t know. You said you could say, I wanna put a pin in it. It’s so important. And, in negotiating a divorce settlement, it’s rarely a, let’s talk about this topic, resolve it. And move on to the next topic because, the common description is that it’s a puzzle.

And all those pieces have to fit together. And so you may not meet, be able to make a decision about how you’re going to manage the house until you know what spousal support and child support are going to look like. Yeah. Can I afford to keep the house? I don’t know. 

Yeah. You shouldn’t decide whether you can keep the house or not, or you’re going to refinance or you’re going to do those things.

[00:23:00] Until you know what the, those, that additional money coming into the household might look like. There’s so many moving pieces and that’s the other thing a mediator does as a neutral is keeps track of for you both the issues you need to resolve and the progress you’re making in resolving them.

Yes. It keeps that neutral, not scoreboard, that’s not the right term. ’cause that sounds like there’s your keeping score keeps a neutral understanding and running of total a tally. Yeah. Yeah. A tally of where you are, where you’re going, what still needs to be done. Because people should also understand that divorce mediation generally. Is done in sequential time-limited meetings, especially if you are not represented by your attorneys or you don’t have your attorneys in the room with you. I wouldn’t normally do it in two hour chunks because I found that’s as long as [00:25:00] people can sit in that intense discussion space without starting to make decisions out of fatigue, out of just wanting to be done. And so again, get to the end of your two hours, put pins, memorialize what you did, agree to put pins where you still need to discuss, come back fresh and keep moving.

Kate Anthony: Yes. Such good advice. Absolutely. There are different forms of mediation as well, so let’s go through what those are.

We’ve been talking about the kind of mediation where you do two hour chunks. You are in a room. Both parties in the room with the mediator attorneys, in their offices, maybe you call them or put pins and things and go and consult and then you come back together. That’s what I think most people think of.

Susan Guthrie: Probably the more common model that you certainly see, right? Especially since most people are drawn to mediation because they don’t [00:27:00] want that litigation or truly like legal feeling process. There’s a legal aspect to divorce, but so much of it is human and so much of it is financial planning.

And so much of it is parenting and, emotional content. It’s not entirely a legal process and and so people are looking for a mediation process that meets all those needs. Not just that legal side of things. 

Kate Anthony: Exactly. Exactly. Then there is caucus or shuttle mediation. Yeah.

Which I think a lot of people don’t actually know about, which is where you and your attorney often, sometimes with the attorney or sometimes without. I think with is more efficient, much more often are in one room. Or Zoom breakout room and your soon to be ex and their attorney are in another room.

And then the mediator is going back and [00:28:00] forth between, you did it for years. So what are some of the benefits of that? Obviously having your attorney in the room giving you like, in the real time feedback is pretty great. Yes. 

Susan Guthrie: It’s great. They’re there, they’re emotional support.

They are obviously your legal support and very often for most people, they are the one doing the talking. You have much less of a role to play in that. And for many people there’s comfort in that. This is hard stuff. Yeah, that’s right. It’s hard. That’s to talk about these things. But I will say there’s also benefits to being able to sit down and speak for yourself.

Nothing gets lost in translation. Nothing is negotiated through someone else’s voice, and it’s your life. No one’s more intimately involved in what will actually work for you. But there are benefits if you are in a situation where there has been abuse, emotional, coercive [00:29:00] control, physical abuse, absolutely.

That shuttle diplomacy. I actually prefer online. If you were in that situation and there’s been abuse in certain cases, there’s that literal physical distance beyond just being in the same office space is important. Yes. 

Kate Anthony: You can have your cat on your lap, you can have all your comfort.

All the comforts that you need Yeah. To support you. And another benefit of this is that this kind of mediation you can potentially get done in an eight hour day. It’s, or longer. Or longer. It’s exhausting and you’re not doing all the work and you are supported. And so you can sustain it for longer.

Susan Guthrie: So this type of mediation comes up much more often in cases that are being handled traditionally, where you have cases where people are going through their attorney negotiations [00:30:00] are ongoing, discovery is ongoing. We get down the road, and it could be months, it could be a year or more, but you’re getting closer to trial dates, you’re getting closer to this, getting in front of a judge and.

At some point in time, usually at least one of the attorneys will say, we’re at a point where we should try mediation. Some states it’s required before you can have a, a trial date, and at that point, the two attorneys usually will agree upon a mediator. And you will all troop off to that mediator’s office, to their conference rooms and set up this, shuttle diplomacy sort of approach.

And that is when sometimes you’ve agreed on some things. So we have a limited list of what you do need to finalize. That’s almost always because you’re close, you’ve been doing this for a while, and you are in a situation where you really need to get this done because next step is going to [00:31:00] trial. And trial is an unknown.

Trial’s gonna cost a lot of money. Trial means the attorneys have to ramp up, finish the discovery, or update the discovery. It’s gonna cost you a lot of money. So there’s a lot of incentive in that day, locked in those rooms to come to agreements. And there’s good and bad to that. Good to come to agreements.

Are you coming to them because they’re what worked for you? Or are you coming to them because you’re been in a locked in a room with your lawyer for eight hours and you’re just ready to be done with that? 

Kate Anthony: This, the, this is all the psychology, right? That Yeah. That you wanna be really prepared for.

This is why it’s really helpful to be in your home with your comfort items, with your cat in your lap. With your dog kissing your face every once in a while. Yes. Or because you don’t want, this is the shit that leads to like false confessions in, interrogation or 

Susan Guthrie: people agreeing to things they then don’t agree to after they had a chance to think about it.

Kate Anthony: It happens all the time. It [00:32:00] happens all the time. And so I think, yes, and I do think, we said eight hours and you said, or longer. And I just wanna say that if you are at a point where you are done and you can’t, you have decision fatigue. You can no longer deal with any of this stuff, but you feel like we’ve put in this much time and they say it’s gonna be only another couple of hours.

Advocate for yourself. Advocate for yourself and say, I cannot make any more good decisions. And great way to phrase it, by the way, right? I can’t make any more good decisions, so I do not trust myself to make any more good decisions. We have to call it, you’ve got to be able to advocate for yourself in this situation.

Susan, you said something earlier that I [00:33:00] wanna point to. ’cause I think it’s really important where you said there’s something really powerful about advocating for yourself and speaking for yourself in this process. And I know that so many of the women that I work with have spent decades not being able to speak for themselves and not being able to advocate for themselves.

And so the idea of doing so in this moment is like it, it doesn’t compute. And this is one of the greatest opportunities that you have in this moment, which is to find your voice. Stand in your truth and own what is yours, rightfully, legally. If you need help with that’s where a coach comes in.

That is what a divorce coach does. Absolutely. That my job. Helping you find that space because it is the greatest [00:32:00] opportunity for emotional growth that you could ever be given. You’re also doing it in the midst of all this craziness and upheaval and pushback against the person who you have not, fought back against for so long.

Yeah. It’s a tall ask. It’s a tall ask, but it’s so important. 

Susan Guthrie: It’s, I’ve been in the room and seen the power, right? I’ve seen it when somebody is able to own their truth, stand in that moment. And. Say what they need to say. Yep. And only you can really do that for yourself.

I’ve also advocated for clients, i’ve stood in courtrooms. I’ve stood in arbitration hearings. I’ve talked to other attorneys about my client’s needs and advocated for them. And there’s some power in that. Somebody’s sticking up for me, but Sure. You aren’t the person owning that power.

Susan Guthrie: And [00:35:00] mediation is very much rooted. I have found after many years of doing it in one universal truth. And that is everybody wants to be heard. Yes. Everybody wants to be heard. Whether it’s being heard by your spouse, which can happen in the mediation process, or even if it’s, I can’t tell you as a mediator how many times I’ve been the vessel of hearing.

Just the. My job in that moment was to sit and hear what someone had not been given an opportunity to say for however long that might have been. And that was the thing that turned the tide in the process for them to start making decisions or start moving forward. But no one had listened.

Absolutely. And it’s a very powerful process. 

Kate Anthony: Yeah. Then you can go, okay, I got that off my chest in a sense. Yes. And it may have zero bearing on the decisions made, but it just, it’s a [00:36:00] freeing, it’s a freeing process. Step toward healing. Yeah, absolutely. It’s a step 

Susan Guthrie: toward moving forward, away from where you were.

And it happens in the process. And so that’s valuable too. You’ve seen it, I know in the coaching process, when it happens in the mediation process, people think healing starts when you’re divorced. 

Kate Anthony: No. You wanted to start’s whole process. That’s what I was just gonna say, I’m so glad you said that, Susan, because I have a lot of clients who they think it happens after, or they’re waiting for it to happen before they wanna have all the answers.

They wanna have all the information, or they wanna find their voice, or they wanna and it’s no. You’re gonna, you’re gonna grow soon as you like, and it feels like you’re jumping off a cliff. It feels like you don’t know if your parachute’s gonna work or not, but once you start growing.

You you have to. And yeah. And it’s really powerful.

Susan Guthrie: It’s really [00:37:00] powerful. And, to take it back to mediation. When you are participatory, that participatory in your divorce process, in the decisions being made, in discussing what works, what doesn’t work in coming up with the solutions to the problems facing your family, as you try to negotiate this and move forward, there is also a huge amount of power satisfaction and durability to what comes out of those agreements.

What happens when someone else goes into a room, a courtroom, a mediation room, a negotiation room, conference room, and negotiates on your behalf, and you get an agreement that was negotiated without your direct input? There’s a huge difference between that agreement and the one that you were intimately involved with creating.

Kate Anthony: Absolutely, and this is, this goes to [00:38:00] where, just for clarification when if you don’t, if you’re not mediating, you, attorneys are doing all of that negotiating for you. You may not even know what they’re negotiating. 

Susan Guthrie: You’re not on that phone call you’re not on the phone. You may see the email, right? 

Kate Anthony: That’s right. And you may not have any idea what they’re I keep telling this story ’cause I think it’s really fascinating. I’ll keep it anonymous, but somebody I know I was on a call with their attorney who was, ’cause they were doing, the attorneys were negotiating everything.

There was no mediation happening. There wasn’t, they weren’t litigating, they were just, their attorneys were doing it negotiating. They were negotiating the attorney’s negotiating on their halves. And the attorney said your ex-spouse is requesting reimbursement for all of the child support that you paid [00:39:00] your first ex-spouse during your marriage because it was paid out of joint property.

Community, property, community. Sure. The person who I was on the phone with was up in arms like that is I can’t believe they would do that. I can’t believe that they would ask for that. That is so disgusting. That is so right. And I was on this call and I was listening and I know both parties and I said, I don’t think they asked for that.

I think their attorney asked for that. I do not believe that they even know that their attorney asked for is asking for this. I strongly believe that They have no idea. And it turns out of course, and when I put it to this person, they were like, you know what, you’re right. There’s no way.

They would never presume to get reimbursed for child support. Sure enough, once they actually, [00:41:00] like they emailed directly outside of their attorney. The other party was like, what? Absolutely not. That’s insanity. So a again, being present in the negotiation, being part of the negotiations is priceless because you really sometimes don’t know and like how much were they gonna spend with their attorneys fighting over half of child support payments that over 15 years, 

Susan Guthrie: it was probably just a negotiation ploy, right?

Yeah. The attorney threw it out there because there was a colorable claim of law. Sure. So whether the client had asked for it or not, right? And that’s the problem. Not everybody negotiates the same way. Lawyers learn negotiation from a zero sum sort of formula. I took law school negotiation.

I can tell you how we learned how to negotiate fat on the bone. Don’t put your best offer out there. Ask for more than what you’re, [00:42:00] than you’re willing to take. Never, all of that. That is not in mediation. How you see people negotiating with each other. Generally you are talking to someone that you probably know better than any other person on the planet.

And you are talking to them about things that are mutually important, like your children, right? You know how they feel about your children, that you know the thi, right? So you have that ability to speak to them in that moment, either through a screen, across the table and you’re talking to them about these things and that there’s power there as well, because you’re also going to hear things from them.

And I again, can’t tell you how many times I have heard something happened in a mediation where one spouse will say to the other one, I have to you, that really hurts me, that you would say that it’s this, it’s that. It’s, and the other person said, I never [00:43:00] really thought about it that way.

Yep. I never really saw it from that point of view. Now that you say that. I see. Maybe we should try this instead, or some, somebody Now I, yes that, magic moment doesn’t happen every minute of every day, but it would never have happened if your attorney was speaking for you.

Kate Anthony: Absolutely. A hundred percent. A hundred percent. Susan. The other thing that people are constantly asking me is I have mediation tomorrow. I have no idea what to expect. How does the process work from the mo like in, from day one, from moment one, like they, are they given forms? Do they file first?

Where are they in the process? What are, what’s the first day gonna look like? They often, they literally have no idea ’cause their mediators are not really teeing them up very well. 

Susan Guthrie: Shame on their mediator, I will say. One of the things you, when you are interviewing mediators, when you go for a consultation it’s a [00:44:00] sign of a really good mediator that they do what I call, set the table for you.

They lay it all out, right? They put the napkins to the plates, so dishes, and they tell you what to expect and what order the food’s coming in. It’s the same thing. You should know when you hire your mediator, what the process will look like, and part of it generally is where you are in the process.

If you are starting your divorce, it will look one way. And if you are that couple who’s been negotiating through your attorneys for a year and are now going, to mediation as a last ditch effort before trial, that’s a very different sort of process, right? But if you’re going and you’re going to start your mediation with a mediator, with an attorney, or without, there’s a general process that it needs to follow, right?

That almost every mediator is going to follow, whether they tell you about it or not. Hopefully they do. Yeah. You, the first phase [00:45:00] is and this is the first phase in any divorce process. Remember when I said all the way back at the beginning, it’s just a bunch of different ways to get to hopefully the same end.

You’re divorced. They all start with information gathering. You cannot start negotiating or understanding what your issues are and then negotiating them until you have all your facts on the table. Now everybody wants to jump to the dividing things up. You’ve done this. New client walks in and they say, here’s the most, the one you hear most often.

We’ve already decided a few things. I’m gonna keep the house, he’s gonna keep his retirement and dah. Yeah. They’ve walked through the door and they’ve made those decisions, right? But they don’t know how much the mortgage is on the house. They don’t know whether, all those things you said earlier, they don’t know what the pensions were.

They didn’t know there was a 401k. All of that is because they started making the decisions before they knew what. Existed. Yes. I always say you [00:46:00] have to know what’s in your pie before you slice your pie up and start putting it on each other’s plates. That’s right. So I always quote you on that. Oh, it’s, people seem to really get the pie analogy they really do for 30 years.

Kate Anthony: I use it all the time now. 

Susan Guthrie: But say you might have an apple, orange date, plum, grapefruit pie and until you know all the, yeah, it sounds terrible, until you know what’s in there and what’s not in there, because people also can misunderstand whether something’s community or whether something’s, sole property.

And you need to have an understanding of that be that will then. Point out what the issues are that need to be resolved. Your mediator’s gonna help you at a high level and a granular level, understand those issues, and then have those discussions about what works best for the both of you and your family, your children.

Yeah. As you move through those, and that’s what so it, but it starts with [00:47:00] information gathering. 

Kate Anthony: The very first meeting, you’re gonna sit down and your mediator is gonna do what? What are they gonna say? What’s the first thing they’re gonna do? 

Susan Guthrie: So it’ll depend on whether their process was to have you gather some of that for them ahead of time.

Did they send you forms to fill out about what your income was and what your this is and get us your bank statements and all of those things. A lot of them will use lovely programs like Detour Life or Hello Divorce to pull all of that information together so that you don’t have to go sit in their office to do it.

But in some way, your mediator, who’s the maestro of the process, is going to give you support and instructions on what to gather and how to gather it. Yeah. And then most of them will go through that ahead of that first meeting. And then in the first meeting we’ll walk through it with you. And that’s a really important step.

Most people wanna skip over it. Oh, I read through [00:48:00] or I looked at it. And it’s so important to understand that pie because very often you think you understand, you don’t understand, and it’s where the issues start to be explained to you. Because you as a lay person, don’t really know all of the things that go along with the house, all the things that go along with the pension, all the things that go along with the credit card debt.

And so your mediator in that moment, in that neutral way, is going to start making a list of all of the issues you need to resolve. We call it agenda setting, but, or they may have a different name for it. 

Susan Guthrie: And then you’re going to prioritize what order you want us to talk about those things. What’s important?

Do you wanna talk about your kids first? Are there things going on with your kids that we should address before we get to some of the other issues? Or are the bills not getting paid and the house is gonna go into foreclosure and we need to talk about that? And [00:49:00] so then you start going through that agenda and your mediator, each session’s gonna check in with you, should we, this is what we have on the agenda.

Is there anything else we need to address? Do we need to go back to anything and recheck with it? We put a pin in this, should we talk about it? 

Kate Anthony: Great. 

Susan Guthrie: And it’s a process that will unfold over time. And the other thing that’s really important to understand is not every mediation session will look the same.

It might be that your first session, you have financial professionals there because you have a complicated financial picture. So it’s a good idea to have a couple of CDFAs, one for each of you, or one neutral. Because we’ve got some complex stuff to talk about. 

Kate Anthony: You might bring in a co-parenting specialist to give you, to help you guys figure out, custody negotiations, things like that.

Yeah. And look, if this all sounds like crazy expensive, right? Because it’s oh my God, how many fucking professionals do we have to have [00:50:00] in this kitchen? Yes, it is, it can be. And it’ll be more expensive if you don’t get it right the first time and you have to go back to court and refile, or it gets kicked back by the judge who’s I cannot sign off on this because it’s absolutely, skewed in one direction or another, which is rare.

Like a judge. They don’t do that. They do. If it is completely unfair.

Susan Guthrie: Or it costs you money because you made decisions that you really shouldn’t have made. Which is much more often. That’s right. Or it costs you time or it costs you conflict the two drivers of expense.

In divorce and one’s related to the other is time. Time. The longer your divorce goes, the more money it’s gonna cost. It’s just time and what drives it taking a long time. This is the number one driver conflict. The more the two of you are in conflict and not able to agree, and every little [00:51:00] thing has to be argued and the fir you argue about one thing, trust me, the next thing you’re gonna argue about, because now you’re setting up a nice, now you’re pissed.

Little conflict like hello, this is how we handle things, right? We’re gonna argue about every single thing. What does conflict cause you? It causes you to argue over every single thing, takes you more time, drives your attorney’s fees up and costs you more money. Bringing the professionals into the mediation process is actually in the end, going to save you money because you will get your divorce done with the right support in a much shorter period of time and by making the right decisions that you can live with. And you’ll probably never know how expensive that other kind of divorce would’ve been if you two had gone down that other path. So you’re gonna think the check you wrote for your mediation, or the checks you wrote for your mediation were a lot of money.

But take it from Kate and I who have seen both kinds of divorce. 

That divorce is [00:52:00] always gonna be less expensive than that other divorce that we were talking about, where you litigated it takes two years and you argue about, I, I had a hearing once on the fact that somebody took somebody else’s leftovers out of the refrigerator and ate them.

They were supposed to respect the other person’s privacy and property within the jointly shared marital home during the pendency of the action. And so one of the people filed a motion for contempt because they took the fish, old fish, I don’t even know why we would argue about old fish, but Right.

That is a conflict cycle. Those people had argued about everything. So when it became down to the leftover fish, they argued about that too. 

Kate Anthony: Of course they did. Of course they did. Alright. Susan, one last question ’cause we could probably talk through this forever, but how do you know, and who gets to say [00:53:00] when mediation is not working and we just, or it’s not gonna work?

Does the mediator get to make that decision? 

Susan Guthrie: In certain circumstances, the mediator might make that decision, but but. Putting it back in the, where the power really lies. Ultimately, mediation is an opt-in process. The two people getting divorced need to agree to come to that table. Yes. You can be ordered by a judge to go to mediation.

And I want everyone to understand, even in court ordered mediation, 60% of the time at least it is successful. It’s more than 85% when you opt into it. But generally the two people agree they wanna be at the mediation table and usually they’ll have different reasons for doing it. It doesn’t matter. You don’t have to have the same reason to be there.

You just wanna agree to be there. But there are circumstances where the two [00:54:00] people will want to mediate and the mediator will say no. This is not a case that’s suitable for mediation. And the number one reason why a mediator might say that, and that is in cases where safety is an issue, absolutely it is the mediator’s responsibility to call it, when it is a safety issue for one or both of the parties.

But usually it’s for one, when there is domestic violence, intimate partner violence. Yeah. And the safety of at least one of the parties is, or the mediator by the way. Absolutely. Have been harmed. Lawyers have been harmed, judges have been harmed. Yes. In the these cases. So there are definite protocols around if those elements are there.

And good mediators, by the way, are going to ask questions when you’re seeking their services that will let them know. Give them [00:55:00] understanding of whether this dynamic exists in your relationship. They may come out and ask bluntly, has there been, domestic violence in your case? But they’re much more often going to ask questions that you may not even realize are giving them information that lets them understand that this is a case that either needs a special kind of approach and understanding and care.

Because I don’t want people to think that it can’t be mediated. That’s what 

Kate Anthony: I and that’s what I want. What I was gonna say next is that you want, if there is domestic abuse, especially emotional abuse, coercive control, financial abuse, it doesn’t mean that you can’t mediate. You just need to find, make sure you have somebody who has some expertise and training in how to handle cases in which there is a power imbalance.

Because when you assume. That power is equal as a [00:56:00] mediator when it’s not, you are putting the the victim in danger. Yes. 

Susan Guthrie: Yeah. And it’s all different kinds of danger, right? It can be physical danger, but it can be a emotional, financial, emotional danger. A 

Kate Anthony: hundred percent. A hundred percent, 

Susan Guthrie: So many different kinds. Yes. And frankly and you know this as well, it and I want people to know this, it’s the, I don’t know that I’ve ever in 35 years had a case where there wasn’t some power imbalance. Sure. There’s sure. Always. And it may flip flop it. Here’s the general one, right?

Financial husband has the power children, mom has, wife has the power it. Very generalized, but we can have big shifts in power. That doesn’t mean that those two people can’t negotiate. In fact, they often understand where their power is and it becomes a matter of trying to, get them to work with each other in a new way’s. That’s a skilled mediator’s [00:57:00] job. It’s when 

Kate Anthony: date there’s actual danger. Absolutely. And in many cases of domestic abuse, coercive control, financial abuse, it is act, it can be safer to mediate than litigate because of the way that the family court tends to function and not understand these things.

So we are not saying don’t do it. We are saying make sure you have someone who understands the dynamics and how, and is very skilled at negotiating with somebody with this temperament, 

Susan Guthrie: find a mediator. In that case, I would suggest finding a mediator who has trained with Bill Eddie, who he has an entire program for mediators.

I’ve taken the program it’s a fantastic program and it is based upon mediating high conflict disputes. Yes, absolutely. Yeah. It’s, it’s just really critical. You can reach out to the High Conflict Institute and get the name of someone [00:59:00] to, to help you with that. But I love your point and wanna emphasize Kate, that very often if you are a victim of the abuse, mediation is a better option for you.

If you can Yes. If the danger can be managed because the litigation process is used as another tool of abuse. Exactly by most abusers and the court system, I’m not gonna, I’m not gonna beat up the court system the same way I think everybody else does. Does I’ve worked within that system.

Everyone in the system is mostly truly trying to do their best. Yeah. To protect people. And that includes our judges and our court personnel and the attorneys who we go in there. Frankly, folks, it’s not a great fun way to make a living. We are there because we’re trying to help people. But the system itself does have flaws that make, and these cases, by their very nature are behaviors that people are very good at hiding.

They’re very good at manipulating. And it’s just [01:00:00] very difficult. It’s not as easy as everyone thinks. So mediation is often a way where these behaviors can be better managed. But again, need that skilled mediator. Need it. 

Kate Anthony: Susan, thank you so much for being here, as always, sharing your immense wealth of wisdom.

Obviously, Susan can be found at her podcast, divorce and Beyond, which is a phenomenal podcast that also covers all of this in important content. And Susan, where else can people find you? What do you want people to know about you and your fabulosity? 

Susan Guthrie: Just really the main thing is the Divorce and Beyond podcast, website, divorce and beyond.

pod.com recently launched our new website. I’m really excited because I learned how to make a bot and the bot just can search through all 400 plus episodes for you and find all of Kate’s episodes you just put in Kate in the in the [01:00:00] toolbar. And it’s gonna pull up all of Kate’s many fabulous episodes on divorce and beyond.

The other thing I wanna tell everyone is Kate is coming to Divorce and Beyond in the very new near future, and we are gonna talk about, I’m excited. Can I say, Kate, what we’re gonna talk about? Sure, of course. Yeah, because I’m excited to I have been wanting to have this episode put out there for so long, but I ha I need you to come and do this with me because we are gonna talk about the uneven workload in relationships and the mental load that women carry and how this.

I watched that show. All her fault. I haven’t watched it yet. I haven’t watched it yet. I know you have to. He’s so frustrated. 

Kate Anthony: I know. It’s all about, I know. It’s all about 

Susan Guthrie: all her fault. It’s because it’s all her job.

Kate Anthony: It’s all her fault. Everything is her job. I know. I keep saying to Ethan, honey, I really need to watch this for work.

And he’s oh, can’t we watch something more fun? 

Susan Guthrie: It’s a very good show, but

Kate Anthony: It will ramp you up, girl. Yeah, I’m sure it will. I’m sure [00:58:00] it will. Oh, Eve. All right, so to be continued on Susan’s show, go check her out. Susan, thank you so much. As always, you’re just the best. 

Susan Guthrie: Always happy to be here with you.

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