Divorce Without Drama: Understanding Collaborative & Mediation Options with Andrea Vacca [Ep. 159]

Transcript:

[00:00:00] Voiceover: Welcome to the Life Unlimited Podcast with Larry Heller. You deserve complete financial advice so you can confidently live your life your way for life. Now let’s get into this week’s podcast episode.

[00:00:18] Matt Halloran: Hello and welcome to another, uh, life Unlimited podcast with your host, Larry Heller. Andrea Vacca is our guest.

[00:00:24] Today we’re gonna be talking about non-adversarial divorce. Now she has started her own family law group in Manhattan, which is Vacca Law. Uh, she specializes in non-adversarial divorce and family law matters. Formally focused on the traditional divorce litigation. Andrea now helps clients achieve amicable solutions outside the court.

[00:00:41] She’s a renowned collaborative divorce attorney mediator. Former president of the New York Association of Collaborative Professionals, author of Divorce Without a Court, a more Peaceful Solution, the host of a Better Divorce podcast, which by the way, Larry was a guest on. So Larry, take it away, man.

[00:00:58] Larry Heller: Thanks Matt.

[00:00:58] Andrea, thank you so much for joining us today. So let’s kind of like start what Matt just said, you know, non adversarial divorce. I mean, it kind of is, doesn’t sound like it should go together because. Divorce is kind of a little bit of a conflict. So why don’t you kind of at least give audience a description of what your version of non-adversarial divorce is?

[00:01:21] Andrea Vacca: Yeah, sure. So, hi Larry. Great to see you and be here. Um, you know, there’s a way to, um, you can all, it sounds like phe, moronic, I know. Non adversarial divorce, you’re divorcing because you no longer get along. You wanna end your marriage. Mm-Hmm. It’s not working anymore. What? What we do and the way that I practice.

[00:01:41] And help our clients and their marriages is to do it in a way that’s not adversarial, right? Not it, it’s not going to be, we’re not ramping up the conflict between them. We’re trying to cool the flames, find a solution and not make it worse for them. There’s already animosity. We don’t wanna build on that.

[00:02:03] We wanna try to bring it down, bring it down a level so we can have some, some conversations that can help them move on with their lives. That’s what I mean by non-adversarial divorce. It also means, of course, we’re not litigating, we’re not using the court system. We’re using methods like mediation and the collaborative divorce process.

[00:02:21] Um, and, uh, uh, negotiation tactics that are not, um, trying to make it. Uh, hit one side against the other, but to find more solutions, right. That they can both live with.

[00:02:34] Larry Heller: And I wanna get into the mediation and collaboration in a second, but let, let, let’s just kind of go through kind of where real life scenarios ’cause only one spouse is coming to you, not both spouses are coming to you.

[00:02:46] So how do you even start that conversation to know this is gonna be a, a candidate for a non-ad, adversial adversarial divorce.

[00:02:56] Andrea Vacca: Yeah, great. It’s, that’s such a good question. Well, the first thing we do, everybody who calls our office or contacts our office through whatever means before we know we can even help them.

[00:03:06] We ask them, do you think this matter can be resolved without court involvement? So they have to think that that’s at least possible. So it means like nobody, there’s no court action pending right now. They’re not threatening to go to court. Their spouse hasn’t threatened this so far. They think they can do this without court.

[00:03:24] Great. So now they can, we can talk to them and take it to the next step. And so what we wanna know if, if this can be a non adversarial process, are they, um, willing to talk about what’s important to them as, as opposed to taking a position of something they must have? So, such as I must remain in the marital home.

[00:03:47] Uh, I can’t be forced out of this home. Well, let’s talk about why this home is important to you. What is it that makes you wanna stay there? Not just to, you know, hurt your spouse, but really it’s, why is it important to you? So, we’re gonna try, they have to be willing to talk to us on that level why, why things are important.

[00:04:05] They have to be willing to try and understand what’s important to the other, to their spouse. They have to be willing to try and understand, um, um, well, they have to be willing to focus on the present and the future and not be so caught up in the past and who did what to who. That’s what court’s for, right?

[00:04:24] Mm-Hmm. To litigate the past. We want to create a new future, so they have to be forward looking. Um, they have to be willing to work it. It’s very helpful if they’re willing to work with other specialists like you, like a financial professional, a certified divorce financial analyst, um, parenting specialist.

[00:04:42] These are team members that will help to make sure none of those emotional or financial issues can hijack the other issues and we can actually get a, a solution. So these are just some of the things. They also have to be trustworthy and. Give their spouse the benefit of the doubt and, and have some trust that what they’re saying is truthful, um, and not be caught in the victim mode or the guilt mode, right?

[00:05:08] So that those are really hard divorces to keep non-adversarial when someone just wants to be only focused on what was done to them and how wronged they were, or somebody’s just trying to. Give everything away and, and, and be out of guilt like that guilt doesn’t last very long. Mm-Hmm. So eventually it all blows up.

[00:05:29] So those are just some of the things that I, that are really important to try to keep it non-adversarial.

[00:05:34] Larry Heller: Right. That sounds great. And I know on your website you talk about, you know, pre-divorce guidelines and so asking the right questions and doing that. So now you’ve had some of those conversations and you mentioned, um, collaboration mediation.

[00:05:49] So is that. Kind of, you start to have those conversations. What’s the, the next step where you say, okay, this is a possibility. It can be non adv. Adversarial.

[00:05:59] Andrea Vacca: Right. So the, so we are going to be talking to them, getting a sense of where they are on this scale of. Traits that I just mentioned and, and how they’re, how they interact now with their spouse.

[00:06:10] Like how, what is your dynamic? What are the issues that have come up? Uh, how do you resolve disputes? Um, how, tell me about your children. So we wanna understand the complexity of the issues, the complexity of their dynamic, uh, whether there’s. If there’s a big power imbalance, and that can mean they have very different understanding of the finances or they have a very different way of communicating.

[00:06:36] One’s very assertive and one’s very passive. So certain traits of how they are together will help us figure out whether mediation could be a good fit or if they need a little more support around the collaborative process or, or whether they actually do need to go to court and we have to refer them to somebody else.

[00:06:55] So, um,

[00:06:57] Larry Heller: why don’t we take a step back and just let our audience know kind of what is mediation and, and collaboration. ’cause I think a lot of people don’t really understand there’s a lot of different options here than just kind of going through the traditional divorce process.

[00:07:12] Andrea Vacca: Yeah. A a a lot of people don’t dunno the difference.

[00:07:14] So mediation. It’s a process where there’s a, a mediator like I am, like the other attorneys in my office are, and the couple will sit down with us and we will help them work through all of the issues around their divorce. They probably have attorneys that they’re consulting with, but they’re outside the room.

[00:07:33] In New York, this is how we do it. Typically, it’s the, the two clients, the, the, the spouses and the mediator are meeting on Zoom or in person, and we’re going to work through all the issues that they need to resolve. Then we draft an agreement for them that their attorneys will review and hopefully fine, and they can then move on with their divorce.

[00:07:56] Um, in the collaborative process, they’re, they’re, we’re hiring, they’re hiring two attorneys who are collaboratively trained, and the, the principles of a collaborative divorce process are these attorneys will not litigate with you. There’ll be full disclosure and transparency around the finances and any other issues.

[00:08:18] We’ll always keep the best interest of the children front and center, and we’ll be negotiating based on interest and needs and not position. So all of these things that I just mentioned in a collaborative process are in a signed agreement. We call it a participation agreement. The clients are signing it, the attorneys and the other divorce professionals on the team.

[00:08:37] It’s a team approach. To divorce with the financial professional, the mental health professional who we call a divorce coach or a family specialist, and the two lawyers and the client, the bigger process and it provides more support for those couple who can’t advocate on their own.

[00:08:54] Larry Heller: Just so, just so we’re clear.

[00:08:56] So a collaborative process. If somehow another it breaks down, then both parties have gotta hire new attorneys to represent them. So there’s a little bit more of a motivation to to have this worked out during the collaborative process.

[00:09:11] Andrea Vacca: Yes, it is. And it’s a high, high rate of thick death. That if you, if the attorney, they’re being doing their job and assessing the, the case properly and making sure the right people are choosing it, the rate of success is very, very high.

[00:09:25] That we get a signed agreement and they never have to hire other attorneys. It’s over 90%.

[00:09:30] Larry Heller: Right. Do you have, do you have an idea of how many divorces these days coming through, you are going through the mediation collaborative process? What kind of percentage?

[00:09:40] Andrea Vacca: I can talk on the basis of percentage of revenue, but I can’t tell you exactly the cases.

[00:09:46] I mean, the collaborative process is much, is more expensive. Mm-Hmm. It’s more time intensive because the couple needs the support. Um, but you know, like,

[00:09:57] Larry Heller: but are you see, are you seeing more mediation collaborative these days or not really?

[00:10:02] Andrea Vacca: Yes, definitely more people, and I’ve been doing this now for about 15 years.

[00:10:07] I’ve been practicing collaboratively. More and more people are reaching out and saying, I would like to talk to you about the collaborative process. I used to always have to educate people about it, but more and more people are hearing about it ’cause their friends did it, or somebody they know or they read about it.

[00:10:21] They expand our blog, whatever it is. And so more people are interested in it. Definitely.

[00:10:26] Larry Heller: Okay, so what made you kind of get out of the litigation side and more focus on the non-adversarial divorce legal services?

[00:10:38] Andrea Vacca: Well, when I first heard about the collaborative divorce process it, I was at a, I was at a meeting at the New York City Bar Association.

[00:10:46] These two attorneys came to talk to us about it, and it was like this light shined down on this long conference table. I’ve never experienced anything like it and said, this is. Amazing. You can, you can help couple with the attorneys working together. I, I need to do this. So I finally got the training, I got the mediation training, collaborative training, and now five years into being a collaborative lawyer and working this way, I.

[00:11:11] I realized how hard it was for me to take off that litigation hat, put on the collaborative hat from client to client. I just said, I can’t do it. Uh, the collaborative process and mediation was working so much better. Clients had control, um, they, it could be more creative for their circumstances. Uh, they were able to move on with their lives.

[00:11:32] They weren’t calling me. A year later, a month later after signing their agreement saying. He’s already violating it. They were, we were getting them good agreements that were durable. I said, I have, I, I can’t do both anymore. And I just decided to stop litigating and ever since then, and which has been now about 15 years, so I’ve been, I guess doing collaborative longer than that.

[00:11:55] Um, my whole firm is non non-litigation and so all the attorneys here, none of us litigate. And I’m very, very proud that that’s how we help our clients.

[00:12:05] Larry Heller: That’s great. And do you see, do you think these process expedites the divorce process by using mediation and collaborative?

[00:12:14] Andrea Vacca: If again, if it’s the right process, yes.

[00:12:17] It will be less. It won’t take years and years, which litigation will take. So you know, if you need the court to start making decisions for you, you’re going to be in the divorce process for many, many years. And. It’s very likely you will not be happy with the outcome. Even if your attorney thought you won, you will probably not be happy ’cause you didn’t make the decision for those cases.

[00:12:40] You’re probably fighting after the judge makes the decision, like I said, somebody didn’t do what they needed to do or you don’t know how to deal with changes that come up ’cause you didn’t have any experience negotiating for real life results. So. It, it, it ends When you end, when you enter into a mediation or collaborative divorce, you’re pretty sure that agreement is the end and you’ll be able to move on with more peace.

[00:13:06] Larry Heller: Never thought about that, but that’s, that, that, that’s an interesting way of looking at it and knowing and hearing about this after the fact that there’s less chances of that afterwards. Um, I guess is, is important when you start talking to people about that, because I guess there are a lot of, you know, more, some mis misconceptions that people may have about collaborative or mediation.

[00:13:30] So how do you kind of address them?

[00:13:34] Andrea Vacca: Yeah, well some of the misconceptions with regard to mediation and people call and say, I wanna do, we wanna mediate ’cause it will be less expensive. We don’t, and that we don’t need lawyers. Those are two big misconceptions. You do need lawyers to review the agreement.

[00:13:52] You should never sign a legal contract without having a lawyer review it and a, and a media and an an agreement. Spending your economic partnership of your marriage and determining how you’re gonna spend time and spend money regarding your children is a very complex document. It needs to be reviewed, so we always recommend you need a review attorney.

[00:14:12] You should hire that attorney sooner than later so that if you need legal advice, you have someone to pick up the phone and call. So that’s one misconception. The other is that it’ll be less expensive, but it’s not if it’s not the right process. So if there are those power imbalances or it’s a very high conflict relationship, or you are very ineffective communication style, or there’s lack of trust, this will be a very long, drawn out process and you probably won’t get an agreement out of it, and you’ll be very disappointed.

[00:14:43] So take your advice from your attorney and if, if they say, I don’t think mediation is going to be a good fit for you, they’re saying it for a reason. Okay. So that’s one. And on collaboration, some of the. Misconceptions we hear is that it will be too expensive to work with a team of professionals and do divorce this way.

[00:15:03] And I say it’s more like insurance because of what we just talked about. You’re not, you’re going to get an agreement you can live with and that is not, um. You’re not settling out of duress, out of, uh, exhaustion and fear. Uh, you’re not, you’re not coming to an agreement on the courthouse depth because the judge is gonna call your case for a trial.

[00:15:26] You know, so it’s more thoughtful and you will be, it will be over. So put the time and the money and the energy and on the front end so you can have the peaceful life you hopefully are aiming for. Um, and the other misconception. I’ll have a client who will call and say, I wanna do collaborative. And I go, I talk to them about how they can talk to their spouse about it, and then their spouse says, oh, I hired a lawyer.

[00:15:51] And, and they say they can, they, they work collaboratively. They’re collaborative. Hmm. They’re not collaboratively trained. Though. Finding a lawyer who settled most of their cases does not mean they are a collaborative lawyer. It just means they know how to negotiate a very different process and. When we talk about collaborative divorce, he wants someone who’s been trained in the process, knows how to mediate, knows how to work with other, a team of, of professional, knows how to help you advocate for yourself if you can.

[00:16:22] Um, that’s always ideal. So those are some of the misconceptions there.

[00:16:26] Larry Heller: So a lot of times what we’ve seen, ’cause we work with a lot of people that have gone, gone through a divorce or have. Finish going through divorce and one of the two spouses is the financial spouse and the other one is the non-financial may not even know anything that’s going on.

[00:16:39] Would you recommend using mediation or collaborative in that instance, or it really depends.

[00:16:47] Andrea Vacca: I would usually recommend collaborative over mediation in that sense because we’ll have a co um, um, a certified divorce financial analyst on the team who can help educate the lessons. Financially savvy spouse who can really explain things to them.

[00:17:04] I would also, mediation could be okay if we also bring in a certified divorce financial analyst onto the mediation team.

[00:17:13] Larry Heller: Mm-Hmm.

[00:17:14] Andrea Vacca: So that again, they can educate the couple together, make sure they’re, they are getting all the information, um, we can increase the level of trust that this information is valid and good.

[00:17:25] And they can help educate the client and clear up any questions that they have, but that that client has to feel comfortable also advocating for themself in that process. So either way, when you have an imbalance like that, you real, you need the CDFA on the team,

[00:17:42] Larry Heller: right? And then what happens if you’re kind of going through either of these approaches and you just don’t think you’re gonna be able to get an amicable result?

[00:17:54] Andrea Vacca: We try to make that determination as soon as possible. I don’t want, you know, if we can, if we see the writing on the wall in a couple of months or three months, like one client will not schedule a meeting. They won’t, they’re not doing what they’re supposed to do. They’re. Violating agreements that, that were made verbally.

[00:18:15] Then you have to tell, we tell our client, I don’t think this is the right process and I think you should go talk to another type of attorney who can litigate if you need it. Um, it doesn’t happen that often, but sometimes it does. When you’re married to somebody with a mental, a mental illness or a personality disorder, that’s very, very, you know, strong.

[00:18:36] So sometimes an addiction, you know, if you’re married to someone who’s Mm-Hmm. Actively engaged with using drugs or alcohol and are addicted, that’s very hard to divorce.

[00:18:45] Larry Heller: Okay. I’ll ask you another percentage question. What percentage end up going the litigation route? Do you have an idea

[00:18:52] Andrea Vacca: that’s stored in collaborative divorce?

[00:18:54] Larry Heller: Yes. Yep.

[00:18:55] Andrea Vacca: I, the, the statistics are about 90% of those cases that will resolve with a collaborative agreement and do not need to go. A to another type of process and, and people who have to litigate, um, they always say about 90% of those cases will settle without trial, but yet, but you’re negotiating in a shadow of the trial.

[00:19:21] There’s a lot of motion work and, and a lot of, you know, a lot of, uh, fighting and very adversarial feeling, getting to there. And then I like to say that. A lot of litigation focused attorneys take clients that are about, let’s say, six inches apart and pull them apart. So now they’re 18 inches apart by, by ramping up the animosity between them.

[00:19:46] Larry Heller: Mm-hmm.

[00:19:47] Andrea Vacca: And then as the trial’s approaching, they have to smush ’em back together and try and get them to an agreement. Right. And it’s really hard to sm back together and make sure you’re getting a good agreement. In our processes we’re they’re six inches apart and we’re slowly moving them forward and towards each other so we can find that agreement.

[00:20:04] And it’s a much calmer, even though it’s hard, it’s terrible, you, no one wants to get divorced. But it that the attorneys are not making it worse in the collaborative process. And we’re modeling collaborative communication and behavior, and I think that helps a lot.

[00:20:19] Larry Heller: Yeah, I mean, o obviously all the attorneys, you have fiduciary responsibilities for your clients.

[00:20:24] But I, I guess if, you know, if things go to litigation, um, expenses come up and there can be a little bit of a kind of conflict even that do we try to settle, do we go through the court litigation? And so I guess that all goes away by doing the mediation, the collaborative.

[00:20:45] Andrea Vacca: Tell me more what you mean about the conflict comes up.

[00:20:48] Larry Heller: Well, I mean, uh, I’ve had these conversations with people that are going through it, you know, going through a divorce, um, or even from a matrimonial attorney who’s brought us in, who really wants to settle the, really wants to settle the case. Mm-Hmm. But there are other. Situations where that if the attorney goes to court, their fees are higher.

[00:21:08] So, so we’ve had conversations, well, are they really trying to settle the case? And I know that may not be the norm, but we’ve seen that happen. So, um, so I guess that conflict kind of goes, uh, goes away in the collaborative side.

[00:21:25] Andrea Vacca: It, it typically does. Um. I have seen some attorneys who are trained in the collaborative process, but work for law firms that their bottom line and their, their business model really does better if, if cases are litigated, they make more money.

[00:21:47] So

[00:21:47] they have less incentive to use the collaborative process or commit to the collaborative process. So they’re trained in collaborative, but they don’t wanna really sign on and lose the risk losing the client. It’s very, um, limited thinking, you know? Um, so yes, I, unfortunately, depending on the law firm, I don’t think it’s so much the attorney, well maybe it’s the attorney, but sometimes people just have different priorities for themselves and, and you, and you can ask the attorney.

[00:22:16] Larry Heller: Yep. But I, it was interesting the, the point you made up early, which you never thought about, is one of the advantages of the mediation collaborative is that you’re finding that there is not as many second guessing or regrets when going through that process versus going through the litigation process.

[00:22:35] So I think that’s a tremendous benefit for people to kind of know right up front when they’re deciding which way to go.

[00:22:42] Andrea Vacca: I mean, I, I, I reach out to my clients regularly after they sign their agreements and, and I, one, um, a year just passed since a client of mine went through a collaborative divorce, and it was very complicated and it took a long time.

[00:22:55] Honestly, it took over a year and they were very high conflict. It was hard, but I reached out. I said, how are you? How are you doing? How’s your son? He said, you know, some things have come up, but our agreement was so clear and we knew exactly what we needed to do. When she didn’t respond to me, when I needed her to do something, it was very clear in the agreement, if you don’t respond, this is the process.

[00:23:18] So I, I felt, and he said we were, everything’s fine. And these, these two couldn’t agree on the color of the grass or the sky or anything else. So that is exactly what I’m talking about. They had problem, not only was their agreement clear, but they had problem solving skills. They knew how to do it, they knew they could get through it.

[00:23:38] There’s mindset, there’s practical information, there’s a strong contract, and that is the beauty of collaborative.

[00:23:45] Larry Heller: Yeah, that’s that’s great. So what advice would you give to someone who’s considering a collaborative divorce or, or mediation?

[00:23:53] Andrea Vacca: Well meet with an attorney who’s. Who is an actual mediator and an active collaborative lawyer.

[00:23:59] If you’re interested in one of those, pro in those processes and get advice as to what they think when you tell them about your dynamic and your issues and your concerns and everything else, let them tell you what. Pro I love having those conversations with people and I, we we’re usually right on the mark because we, I’ve been doing this for so long.

[00:24:21] I know, right? So. Find an attorney who does both of those processes. Don’t find an attorney that doesn’t mediate or collaborate and get advice about those process. That’s like me giving you advice about what’s gonna happen in court. I can’t tell you anymore. I don’t know.

[00:24:34] Larry Heller: Mm-Hmm.

[00:24:34] Andrea Vacca: Uh, and then when you decide what process you wanna try, you need to know how to talk to your spouse about it.

[00:24:41] So the attorney. Ask the attorney to give you talking points, or maybe they should reach out to the, you know, you’ll talk about the best way to relay this now to your spouse. It’s a, you put to put a plan together as to how you’re going to present this so that you can sell them on the process or eng, you know, engage them in con in this conversation so they can go find a lawyer.

[00:25:03] Um, and if you think, if your lawyer says, I really think collaboratively better, but you really wanna try the mediation process, I tell clients. Hire two collaboratively trained lawyers as your consulting attorney. Mm-Hmm. So if the lawyers have to step in and help you during the mediation process and you know actually be in the room with you, they know how to collaborate.

[00:25:27] If you decide mediation’s no longer good and the mediator, mediator can step out, now you have a collaborative process, then they have a team in place to do that.

[00:25:35] Larry Heller: So you can go from mediation to collaborative. You just can’t go from collaborative to litigation.

[00:25:40] Andrea Vacca: With those attorneys. Correct.

[00:25:42] Larry Heller: With those attorneys, correct.

[00:25:43] Andrea Vacca: Right. That’s right. So those are the things I would recommend if you

[00:25:46] Larry Heller: Right. And are there questions that somebody should discuss or ask with their potential, you know, divorce attorney, decide on who the best person is to use?

[00:25:58] Andrea Vacca: I think it’s a good question to ask about who on their, in their firm will be working on their case.

[00:26:07] Um, if. I just cut it out of the, out of office response from attorney in a, in a collaborative case, and it said, I’m out of the office for the next few weeks with limited contact. Didn’t say the start date or end date. Mm-Hmm. It didn’t say, call this person if you there, you need to talk to somebody like she’s.

[00:26:26] True solo, you know, so you like, is that, do you want a true solo? Do you

[00:26:32] Larry Heller: Mm-Hmm?

[00:26:33] Andrea Vacca: Do you care if anyone else is working on your case? If, if they’re, if your lawyer’s not available, or would it be helpful for you to have other people who can give you answers, relay information, work with you at a lower rate?

[00:26:46] You know, so ask about who else will be helping you. That’s a really important question because I think. You know, I’ve different strokes for different folks, right? So what we do is we have different levels of people who can help and are all engaged and know about your, your matter, and can help you at any given time at their level.

[00:27:06] So I, I, those are the typical clients that hire us.

[00:27:10] Larry Heller: Hmm. Andrea, thank you so much for joining us. This has been great information For those out out there that are thinking about divorce and wanna know some other options other than litigation. Also on Andrea’s website, which I’ll have her go through in a second, there is a, uh, she has a free ebook, which is Divorce Without Court.

[00:27:29] So you can go there, learn a little bit more about all this. So, Andrea, if they, somebody wants to get in touch with you, how’s the best way of them going about that?

[00:27:38] Andrea Vacca: Uh, yeah. Our website, vaccalaw.com is the best place to find our blog, um, access to our podcast, which you’ve been on, Larry, where we talked about great divorce.

[00:27:49] It’s called a Better Divorce podcast, uh, or videos or information, the ebook, everything’s on vaca law.com. That’s the best place to reach us, and you can contact us through there as well.

[00:27:59] Larry Heller: Great. Thanks again so much for joining us today, Andrea.

[00:28:03] Andrea Vacca: Thanks, Larry. Take care.

[00:28:05] Matt Halloran: Much like Vacca Family Law Group with Heller Wealth Management, there is also a team.

[00:28:11] We happen to think that that’s really important, true, Andrea, that making sure that you have people there if the primary person might be busy, to be able to solve whatever, uh, problems you have or answer any questions. So if you wanna know more about that, please go to heller wealth management.com. And of course, if you have not subscribed to the show, please make sure that you do.

[00:28:29] So for Andrea and for Larry, this is Matt Halloran and we’ll see you on the other side of the mic. Very soon.