The Power of Asking the Right Questions in Divorce Mediation

1. The Power of Asking the Right Questions in Divorce Mediation Getting and Giving Information: The Keys to Empowerment in Divorce Mediation The Family Mediation Institute Workshop 7 – Terri Breer, Esq.

2. Why are questions so important? • They illicit important and necessary information • They establish repour, empathy • They show that we are interested in how the client feels • They dispel misinformation and assumptions • They lead to more questions and greater clarity and understanding • They allow us to do our job better

3. Why are questions so important? • They help narrow and define the issues • They can lead to transformation of the mediation client • They force us to listen • They slow us down • They illicit additional issues that might have been missed • They raise our standard of care by making sure we don’t miss important issues, assets, debts • They help us ascertain whether we need to collaborate with other professionals

4. Each phase has its own power questions and it own purpose in asking questions

5. Questions to determine if you want couple to bring any documents to the Initial Consultation: Are there any restraining orders in place? Have you filed any paperwork with the court? Do you have a Prenup? Any written agreements with your spouse? Are either of you self – employed? Do you have a question about a particular document? Questions to ask Before the Initial Consultation

6. Other techniques that some mediators include in initial consultation: • Provide a pre-meeting questionnaire • Have a telephonic or zoom initial consultation • Meet in Caucus with Each Party then Joint Session • Have another individual at your office conduct initial consultation • Have staff person gather information prior to the initial consult • Offer free consultation Initial Consultation

7. Questions to ask yourself at the Initial Consultation?

8. Initial Consultation

9. Is there anything on the Schedule of Asset & Debts that surprised you? • Do you have any questions for your spouse about their disclosure documents? • Is this the first time you learned about that debt or asset? • Is any thing missing? • Do you own any of these assets with partners, family members, friends? Information Gathering – Schedule Asset & Debts Ask Parties to Exchange Disclosure drafts. Questions to ask after they have reviewed other spouses draft.

10. Is there any income you didn’t know about? • Where did you get this amount? • Is there gardener, housekeeper, or pool man? • Do you intend to keep having your hair done, your nails? • Are you still intending to golf on the weekends? • Children’s expenses – special needs, tutors, club sports, expensive activities • Is there income or expense missing? Information Gathering – Income & Expense Declaration Ask Parties to Exchange Disclosure drafts. Questions to ask after they have reviewed other spouses draft.

11. InformationGathering Real Estate This Photo by Unknown Author is licensed under CC BY-SA

12. When you purchased the family residence what was the source of the down payment? • Did you own another home before you owned your current residence? • How many prior homes did you own? • How is title held? Do you have copy of the deed? • How many times have your refinanced? • Are you both on the mortgage and/or HELOC? • Have you made any improvements to the property? If so, how were they financed? • Ask questions to identify whether you have Moore/Marden or 2640 Reimbursement issues Information Gathering Real Estate

13. Have you talked about what you might do with the Family Residence? • Have you retained a sales agent? Listed the home for sale? • Have you obtained an appraisal? • Do you know where you are going to go when the home is sold? • Would you like some assistance in determining whether you can afford to keep the home? • Have you discussed the disposition of your rental properties? • Do you want the responsibility of being a landlord? Information Gathering Real Estate

14. InformationGathering Retirement This Photo by Unknown Author is licensed under CC BY-ND

15. What stage of life are this couple at? Are they 20-30 years old? In there 40’s and 50’s? About to retire? Have they retired? • Do they work for large corporations or are they public employees? • If over 55 years, are they in “pay status”, are they currently receiving retirement benefits, did they elect a single or a joint annuity, do they know what this means? • Are they familiar with what retirement assets they have? • Do they know difference between defined benefit plans and defined contribution plans? Information Gathering Retirement Generally

16. Where did you get that pension value? • How long did you work at X Corp? • When you left X Corp did you have retirement assets? Did you rollover your 401k? • Have you purchased any retirement credits? • Do you have any loans against your 401k? • Were you working at X Corp before you were married? Information Gathering Retirement Assets Reviewing Disclosure documents

17. What are you looking for with your questions at this stage? • Clients assumptions and misunderstanding about characterization issues • Retirement assets that your clients may not be aware of • Third parties or creditor claims that need to be discovered • Valuation methods that the parties have used in arriving at value • Want to determine if they have fulfilled their disclosure obligations • Are they leaving an asset out because “they already divided it” Information Gathering

18. Information Gathering Parenting This Photo by Unknown Author is licensed under CC BY-NC

19. Do you currently have a schedule for sharing time with the children? • Do you have any idea what sort of schedule you might implement? • What do you mean by 50-50? • Can you tell me what that actually looks like in your mind Monday through Sunday? (children don’t live in percentages) • How is that working out for you? For the children? • Have the children seen any counselors of therapists? • Have you been working with a co-parenting professional? • Do you children have any special needs or disabilities? Information Gathering Parenting

20. Do you have a parenting schedule in mind? • Would you like to hear about some schedules that other parents use? • Do you think your children need to have the same schedule as their brothers and sisters? • Have you any fears about co-parenting? Have you shared those with your spouse? Would you like to talk about that now? • Do you have any work related schedule conflicts that will determine parenting schedule (i.e. fireman, pilots, flight attendants, sales travel, overseas office, etc.) • Are either paternal or maternal grandparents involved in child care? • Do you have a nanny? Information Gathering Parenting

21. Information Gathering Income Sources This Photo by Unknown Author is licensed under CC BY his Photo by Unknown Author is licensed under CC BY-NC

22. Do you have both base salary and bonus? • Are you paid hourly? Do you ever work overtime? • Do you work full time? • What employee benefits do you receive? • Does your employer have 401k? Are you contributing? Does your employer make matching 401k contributions? • Do you have an ESOP, receive Restricted Stock Options, have deferred compensation? • HSA Account? • Does your employer provide health insurance? If so, how much do you pay how much do they pay? Questions when parties are employed

23. When you have their paystubs, tax returns and other documents related to income you will want to ask questions based on information in these documents • You should be able to read a tax return at least sufficiently to see if you need to collaborate with an accountant or CDFA regarding your case, or to advise/recommend your clients speak to their financial professionals • If there appear to be multiple sources of income flowing into a tax return, or multiple tax returns, you will want to ask additional questions, or you may simply leave it to the accountant or other financial professional to provide a report Use the client’s documents to generate questions and suggest further action plan

24. Gathering Information Business, Partnerships, LLC’s, Corporations, Sole Proprietorships This Photo by Unknown Author is licensed under CC BY-ND This Photo by Unknown Author is licensed under CC BY-SA

25. Have you listed any or all of your business entities on your Schedule of Asset & Debts? • Have you had any of these business entities appraised in the past year, or ever? • Do you have copies of the tax returns filed by these entities? • When was the business started? • Where did you obtain the capital to start the business? • How many employees do you have? What are the gross sales? • Do you own or lease the business premises? • Do you employ spouse or other family members? (or are is the company paying your spouse or family members?) Questions when there are business entities Basic Information Only Leave Details to the Accountant

26. Do you have a business accountant and or bookkeeper? • Do you have a Balance Sheet and Profit and Loss Statement that you can provide? Do you have statements for multiple years available? Who has the records? Where are they kept? • Note: if you will be using a forensic accountant they will have their own expensive questionnaire and information gathering process Questions when there are Business Entities

27. Provide the client with a list of expenses that they need to consider and include on Page 3 of their expense declaration • Inquire about certain things that appear to have been omitted • Did you include haircuts, grooming, nail salon? Club memberships, hobbies, sports activities and items? Fees for recreational activities? Are all your childrens’ expenses listed on Page 4? • Ask questions that will help trigger your clients to identify and dig up these expenses • You don’t want to discuss support until all of this information has been developed and obtained from the clients Tackling Expenses

28. Giving Legal Information

29. Giving Legal InformationProvide the “vanilla version” of the law – generic legal rulesProvide handouts with reproduced Family Code Sectionsor summaries of the legal rules that apply Refer Client to Consulting Attorney for legal advice in addition to providing legal informationConsider: “If I were representing husband I would argue . . .”, “ if I were representing wife I would argue . .” , “if you want to learn more about this issue, best to ask your own consulting attorney”

30. Would you like some more information about that? • Did you read the handouts? (provide summary of law on dividing assets, determining child support and spousal support) • Would you like to go over these factors? • Do you understand the Dissomaster or Xspouse report? • Do you understand the Marital Balance Sheet? • Do you have any questions about how I calculated that number? • Do you understand what I meant when I said RSU’s, or non-qualified vs. qualified account? • Do you know what Net Equity, Refinance, Capital Gains or FMV mean? Getting More Legal Information

31. Negotiating

32. Going DeeperParenting Why do you say that? Can you give me an example of when he didn’t know something about Johnny’s care? Do you think you might be able to give him some instructions about that so that next time he will do better? Can you give me an example of when that happens? (“He belittles me in front of the children”) When did that happen last (was late for soccer practice). What did you do? How did you react (when he came to pick up kids late) Do you remember it that way? What would you like to say about that incident? This Photo by Unknown Author is licensed under CC BY

33. What is the purpose of your wanting to do that? • Discover the “Big Rocks” What is most important thing to you in this process? What is something you both want to do? What are the values you share regarding this issue? • Is there anything you feel you should apologize for? • Are you willing to apologize to your spouse today? • What is your biggest disagreement that you have discovered regarding the divorce • What price have you paid for acting this way? Going Deeper Emotional Roadblocks to Settlement

34. There are many mediators who will ask questions that will help clients focus on the purpose of participating in mediation, their goals for the mediation process, or even have the clients draft a mission statement. For example: How valuable an experience do you plan to have today? How open, honest and constructive do you plan to be? How willing are you to listen non-defensively? (Kenneth Cloke, Workshop on Art of Asking Questions) • Collaborative Divorce training also will focus on these broader questions, particularly because of the buy-in clients make when they have retained mental health and parenting professionals. Questions Beyond the Scope of this Presentation

35. These questions are extremely important when a mediator is using a transformative process, and in cases where the conflict between a couple requires working more with the heart of the conflict • Focus today is more on the nuts and bolts of obtaining the information we need to meet our standard of care as divorce mediators and that meet needs of the “garden variety” mediation client • Not suggesting mediators should not attempt to transform the way clients manage conflict and that resolving underlying conflicts is not desirable, but these types of questions require their own workshop (Kenneth Cloke offers workshop entitled “The Art of Asking Questions”) • Cloke’s focus is on questions that create healing, understanding and personal growth Questions Beyond the Scope of this Presentation

36. What do you think you might do instead? • Is the current parenting, financial, living arrangements working? • Is there anything else you want to say about that that might help your spouse understand why you feel so strongly about this? • What would be wrong if you were to accept that proposal? • What concerns do you have about that proposal? • Would you like to hear what other couples have done in this circumstance? • What might he/she do that would change your position? Questions to help with impasse

37. Is this problem really worth the time we are spending on it? What are the benefits of your proposal? How much money do you think it will cost you if you allow this issue to end up in litigation? Can we move on and see if there is another bargaining chip you might find that will allow you to let go of this one? Questions to help with impasse

38. Angela and Michael married in 1992. They own their family residence and hold title as joint tenants. They have agreed to sell the family residence in June when their son Christopher has graduated from High School. They also own a vacation property in Big Bear that Michael will be receiving in the proposed settlement. Hypohetical #1Angela & Michael

39. Questions regarding family residence: • How is title held? Do you have copy of the deed? • When did you purchase the home? • What was the source of the down payment? • Have you made any improvements to the home? • Have your refinanced since your purchase? • How do you pay mortgage, taxes, insurance, maintenance, etc. pending the sale? From what account are these paid? • Who will reside at the Family Residence? • Do you have a listing agent selected? Questions Regarding Big Bear Vacation Home • How is title held? Do you have copy of the deed? • When did you purchase it? • What was source of the down payment? • Have you made any improvements? • Have you refinanced since purchase? • Is it ever rented? Where do rents go? • Who pays expenses for the vacation home? • Where does rental income go? • Do we need an appraisal • Do you see yourself using the vacation home in the future? Angela and Michael – Real Estate Issues

40. The answers to these questions will lead to providing legal information, will let you know if an expert is needed to do a Moore/Marsden or 2640 analysis, or if you need to hire appraisers. The answers to these questions may lead you to instruct the party wanting to buy the house to immediately go talk to a mortgage broker, his family member potential co-signer. The legal information may lead to a settlement proposal regarding the real estate. What do their answers tell us?What is our action plan now that we have this information?

41. This Photo by Unknown Author is licensed under CC BY-SA What if you were to interview listing agents this weekend? This Photo by Unknown Author is licensed under CC BY-SA This Photo by Unknown Author is licensed under CC BY-NC-ND

42. Tina and Bob are both retired. They are divorcing after 35 years of marriage. They are reviewing the drafts of their disclosure documents. Tina has listed “my credit cards” and indicated approximately $5,000. Bob hasn’t listed any credit cards and appears surprised by this entry in Tina’s disclosure. They have both indicated past due taxes due for 2015, 2016. For amount owed they have listed unknown. They have provided tax returns for 2017 and 2018. What are some questions at the initial consultation for Tina and Bob? When did you retire? Are you in pay status now with any pension? Have you selected a single or joint annuity? Are you collecting social security? Are you on Medicare? Where is your monthly payment deposited? Hypothetical #2Tina and Bob

43. Tina and Bob are both retired. They are divorcing after 35 years of marriage. They are reviewing the drafts of their disclosure documents. Tina has listed “my credit cards” and indicated approximately $15,000. Bob hasn’t listed any credit cards and appears surprised by this entry in Tina’s disclosure. They have both indicated past due taxes due for 2015, 2016. For amount owed they have listed unknown. They have provided tax returns for 2017 and 2018. What are some questions for Tina and Bob after the initial consultation and when the disclosures are being drafted? • I notice you’ve described “my credit cards” and you put a P in the separate property column, why did you use the word “my”? • What are your credit cards and their specific balances? • Did you bring your most recent statements for these credit cards? • How come you don’t know what you owe on your taxes for these years? • Have you filed taxes for 2015 and 2016? • Do you have copies of those tax returns? Hypothetical #2Tina and BobInformation Gathering Stage

44. The answers to these questions will help you determine an action plan for gathering further information that will be needed before the parties negotiate • The answers to these questions might lead to the discovery of credit card debt that is unknown to Bob and that Tina has been hiding for years • The tax problem can finally be addressed through the divorce process What do their answers tell us?What is our action plan now that we have this information?

45. What if you were to make an appointment with your tax accountant next week and have your 2015 and 2016 returns prepared? This Photo by Unknown Author is licensed under CC BY-SA This Photo by Unknown Author is licensed under CC BY-NC-ND

46. Angela has only been working for the past 5 years as a teacher and has a CalPERS retirement plan. Michael is receiving a disability pension for his work prior job as a police officer, and now works for the County of Orange as an investigator for the district attorney. His main objective you have discovered is that he not have to share his OCERs pension with Angela. They have been married 15 years. What questions should you ask based on these simple facts? At Initial Consultation? At Information Gathering stage? When they are Negotiating? Hypohetical #3Betty and Steve

47. Betty and Steve have been married eight years. They have two children, Aiden, age 7, and Sarah, age 5. Betty comes to the second mediation session demanding that Steve’s time with the children pursuant to the temporary agreement be reduced since he obviously knows nothing about parenting children. She claims the children want to spend more time with her because when they are with their father they feel ignored. Hypohetical #4Betty and Steve

48. Questions for Betty: • Can you give me an example of some of your concerns? Yes, he dropped them off wrong side of school yard, there’s no food in the house, they eat at McDonalds every day, Aiden missed soccer practice on Tuesday Questions for Steve: • Do you agree with these facts? Yes, but she doesn’t explain things to me. • What would you like her to explain? • Do you think it would help if she gave you a list of groceries, things to have in the house? Yes that would be great! • Do you have a schedule for activities? • What else might help you when the kids are in your care? Betty and SteveParenting

49. What if you were to go shopping together after Aiden’s soccer game this Saturday? This Photo by Unknown Author is licensed under CC BY-SA This Photo by Unknown Author is licensed under CC BY-NC-ND