The Neutral Zone: Inside Divorce Mediation with Tami Sbar • Your Divorce Case
Inside the Mediation Room: Understanding the Process with Family Law Mediator Tami Sbar
In this episode of How to Split a Toaster, part of the season-long series Your Divorce Case, Seth Nelson and Pete Wright welcome back family law mediator Tami Sbar to dive deep into the mediation process. With 35 years of legal experience, Tami shares her unique perspective as a neutral party who helps divorcing couples reach agreements outside the courtroom. This episode builds on last week's discussion about mediation preparation, offering valuable insights into what actually happens during mediation sessions.
Seth and Pete explore with Tami how mediation differs from courtroom proceedings, particularly in how it empowers couples to make their own decisions. Tami explains her role as a neutral facilitator rather than a decision-maker, and describes how she works with couples separately to help them reach mutually beneficial agreements. The conversation covers everything from managing power imbalances to handling emotional reactions, while providing practical examples of how mediators can help bridge communication gaps between divorcing partners.
Questions we answer in this episode:
What exactly does a mediator do during divorce proceedings?
How do mediators handle situations with significant power imbalances?
Can mediation address issues that courts can't enforce, like college expenses?
Key Takeaways:
Mediators work as neutral facilitators, not judges or decision-makers
Keeping parties in separate rooms often leads to better outcomes
Successful mediation requires both parties to be emotionally ready to settle
Plus, we tackle another listener question! A parent asks about handling college expenses in states where courts don't address them, particularly when one parent previously promised to cover costs through inheritance. Seth and Tami discuss various solutions, from establishing trusts to creating detailed agreements with specific timeframes and conditions.
Whether you're considering mediation or already scheduled for it, this episode provides crucial insights into the process. Tami's experienced perspective, combined with Seth and Pete's practical advice, offers valuable guidance for anyone navigating divorce mediation.
Links & Notes
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Pete Wright:
Welcome to How To Split a Toaster, a divorce podcast about saving your relationships from TruStory FM. Today your toaster finally gets a referee.
Seth Nelson:
Welcome to the show, everybody. I'm Seth Nelson, and as always, I'm here with my good friend, Pete Wright. Today we're diving back into divorce mediation, a process designed to help separating couples reach an agreement outside the courtroom.
This week our guest, Tami Sbar, a friend of the show and returning guest, here she is to walk us through what to expect when you mediate your case. She'll also walk us through the dos and don'ts of mediation, including what may be Pete's favorite part of the show today, what if any mistakes have I made when I mediate with Tami? I'm sure there are none.
Tami, welcome back to the Toaster.
Tami Sbar:
Thank you.
Pete Wright:
God, Tami, he's coming with some just hot confidence energy. To call himself out like that means he knows something.
Tami Sbar:
He does.
Pete Wright:
And so I hope you have been keeping notes about all of his foibles. I need it. I need it.
I'm very excited to have you back, Tami, because as we're working through your divorce case season, we've been talking a little bit about mediation on the show and the role that mediation plays. Before we get started in some of the details about the actual mediation, can you give us your background briefly just for people who haven't listened to that season two episode in a while.
Tami Sbar:
That was a long time ago.
Pete Wright:
Who are you? Why are you here?
Tami Sbar:
Well, my name is Tami Sbar. I am a full-time family mediator, but I started practicing law, oh, 35 years ago, I'm embarrassed to say almost because that means I have a good colorist is what I think.
Pete Wright:
It's all wisdom. That's what that is. It's all wisdom.
Tami Sbar:
But I started as a prosecutor and I did family litigation, but I eventually ended up finding out that I was better as a neutral, and so that's what I do every day. I meet a couple, sometimes two couples depending on if we do one or two in a day, and we spend hours trying to work through their problems to see if we can facilitate an agreement, figure out how to get them through this process from the beginning to the end. So that's what we can do at mediation.
Pete Wright:
And it's because you don't like working with people like Seth in the courtroom, is that right?
Tami Sbar:
What I didn't like about court-
Seth Nelson:
You could have just said, "I don't like working with people like Seth, period."
Pete Wright:
Period.
Tami Sbar:
I still work with people like Seth a lot. But the courtroom is a place where you don't ever get your needs met and it's a place where people have high expectations and I think often low results. Being able to have certainty of outcome when you settle your case at mediation, it gives you control over the outcome to degree, and it lets people, especially in a family case, figure out what's going to be maybe best for their family.
And sometimes I work in situations with people in all different areas of their divorce, whether it's right at the beginning or sometimes they've been litigating five years and they finally come back again. They all have to come to mediation in Florida to get into the courtroom, but some of them come many times. Some people come once and it's done. But we have a lot of control in this process to try to figure out maybe what works better for the family if the parties are interested in getting to resolution. They have to want to do it.
Pete Wright:
Okay, it sounds like mediation is incredibly important in the divorce process. Particularly in Florida, what are the constraints or the conditions that have to be met to be able to pass mediation? They have to go to mediation. Do they have to go for a certain number? What should they expect when they're getting a divorce?
Tami Sbar:
Well, I think they all have to come here before they can go to court. But most people aren't really looking to going to court. They're looking at how to get their case resolved, and some cases mediate multiple times. They'll come in on temporary issues while they're collecting their discovery. They're not ready for a global resolution. Other people, literally the lawyers will file the case and they will get on my calendar and three months later they will come in to mediate, especially if it doesn't have that much complicated discovery and they're just trying to find a forum in which to work through it. And then having the neutral come in and be able to work in both rooms and help each room hear the other room in a different way than maybe they're hearing each other when they speak directly, I almost function as an interpreter I think.
But you can come to mediation, some people come incredibly well-prepared. Some people come they have no idea what they want.
Pete Wright:
You've mentioned that you're a neutral. And I'd love you to talk a little bit more about that. What does it mean for you? What is the goal of your impartiality in a mediation?
Tami Sbar:
The mediator does not take a side. The parties often are confused about that. They often spend a lot of energy trying to convince me of something, and I have to keep reminding them that I don't have a role in decision-making in this process.
I'll speak in terms of a husband and wife. If I'm speaking to the wife, I'm trying to make sure she can hear the perspective of the husband. And then sometimes having a dialogue with her to help her figure out how he might better hear her when I go back in the other room and vice versa.
I tell everybody in my introduction that I'm going to play devil's advocate. So to some degree they're listening to me be the other room and then they're giving me back their perspective and then I'm going to share it in the other room from their perspective. So I'm almost an intermediary or a go-between in some ways, but I also help solve problems.
I've done thousands, literally thousands of agreements. I always say a family lawyer might do maybe 30 divorces in a year. I don't know. That's a lot of cases for one person to handle, and I might do that many in a month. So I see so many cases. So when I hear stuff, I often can bring solutions to the table too, like ideas. What if we tried this? What if we tried that? Or I'm listening in one room and I think, well, this person might be willing to do this. I wonder if that person is. And it may be stuff the lawyers haven't even discussed because they haven't gotten there or their party is really embedded in a certain position.
Seth Nelson:
And I think that's one of the skills that Tami brings to mediation, Pete, is lawyers can get in the way and they can be very positional, especially if they have a client that's very positional. So one example that we've used on the show before is, "I want the house." That's just a position, but Tami gets to the underlying reasons on why do you want the house? Is it because you want to keep the kids there or is it because that's really a way that you're going to get alimony to help pay the mortgage and that's going to be a savings component for you down the long run? So there's different reasons why people may or may not want to keep the house.
Hearing what one person says in one room, and then literally in Tami's mediations you're never in the same room together, so let's make that clear. Other mediators might do it differently, but the husband will be in one room with his lawyer. The wife will be in another room with her lawyer and they'll go back and forth. Sometimes Tami will bring the lawyers together when we're in a log jam to be like, "Okay, let's just talk this through quicker. How can we do this?"
So by getting to the underlying reasoning, it really helps Tami craft a solution that maybe the client hadn't heard of before, maybe the lawyer hadn't thought of before. And it gets away a little bit from what happens in court because Tami says it in her opening that, "Hey, these lawyers might be able to tell you exactly in a narrow range what the law is supposed to do and what the judge is supposed to do, but can never promise what the judge will actually do," and that runs into problems then.
Pete Wright:
A sidebar, may it please the court, are lawyers always present?
Tami Sbar:
No, I mediate for people pro se. I think it's harder because as a neutral I'm not permitted to give legal advice. So when there's a lawyer in the room, let's say Seth and I are in a room with his client, I'm allowed to talk about the law because Seth is in the room and I actually tell the parties in my introduction that if I say anything your lawyer disagrees with, your lawyer's right and I'm wrong, which Seth loves that part.
Seth Nelson:
That's my favorite part. It's the only woman that's ever told me I was right.
Tami Sbar:
So I'm reminding them I'm not a judge, I'm not making decisions, but I can discuss the law when there's a lawyer in the room so that lets me bring something else to the table. When the parties are pro se without counsel, I can give legal information but I can't give legal advice and the difference is difficult to articulate. But to some degree, if the information doesn't negatively impact either side, I can say it. I could tell a couple going through a parenting plan analysis that the Supreme Court of Florida is going to look for us to identify the school district, which parents' school district the kids would go to school and if the parents can agree. That I can tell them. What I can't tell them is what's going to happen if they don't agree, who's going to win how to resolve it. So pro se is harder.
Pete Wright:
Tami, I'm sorry I got to ask. This seems like you, I mean you practice law, but were you ever a practicing therapist? Because it seems to me like your number one skill might not be the law or your ability to mediate, but compartmentalization. How did you get to the point where you could have these conversations and keep yourself from nodding and winking as you're having these conversations? That seems extraordinarily difficult to me.
Tami Sbar:
I think one of the hardest things in mediating honestly is being patient enough to go at the speed of the parties because I do sometimes come in and think, oh, this is how this case needs to settle or this is where there may be a meeting of the minds. I can often hear that right at the beginning just because of what I do, and they have to get there on their own. I can't get them there. So being patient is really a skill set that you have to develop.
I think when I litigated I often found myself problem solving. I maybe a better problem solver than an advocate. So when you mediate, you're not advocating anything except settlement. And I don't even keep statistics on whether the case settles or not because I don't want to be in a position where I'm trying to make it settle because then I would maybe take a side to try to press somebody to taking a position.
I'm looking at it really it's a lot of common sense, practical. Somebody comes in and they want the house. Okay, well, can they afford the house? That's a starting place because I have a lot of people who can't afford to keep the house. Oh, the kids need to stay in the house. And I'll say things like, "Well, maybe it would be better for your kids if you were less financially stressed than keeping this house." So it is sometimes more of a therapeutic conversation than a legal conversation. That happens all the time.
I mean, mediation is definitely the gamut of the law all the way to, "Well, if you don't want the house, why does it have to get sold? Why can't your spouse buy you out?"
"Well, because if I can't have it, she can't have it or he can't have it." They say that all the time. I mean, that's a very common analysis people have. And I'll say, "Well, that's a crazy analysis. What do you care? Maybe if you let that person keep the house, you won't have to pay the cost of sale. Maybe there's some other value to your children in having the stability of being there with one parent, even if...," there's a lot of things to talk about.
Pete Wright:
Well, I think you're bringing up a really good point, and I'd love you both to comment on this. When you are thinking about going into mediation, and Seth and I have talked a lot about the attorney and counselor at law, how you navigate both the emotional and the legal practical parts of the divorce, when you're preparing for a mediation, what do couples need to know about their ideological worldview? How do position them for a successful mediation when you know there are going to be issues like I want to keep the house or one party is just unwilling to compromise on good faith?
Tami Sbar:
You cannot control the other side. You don't know what they're going to do, but you do know what you're going to do. And I think the most satisfied people at the end, I actually tell people at the beginning, "You're not going to love your deal," Most people leave mediation feeling like they've stepped into a place they don't want to go, and I see that happening in both rooms where neither side is particularly satisfied with the deal, but I tell them they're generally thrilled to have it because they do have closure in boundaries and then they can move on with their lives and stop paying legal fees. There's a lot of value to settling a case.
But when you talk to people at a mediation, some people come in and their lawyer has really prepared them not only for what they want, but what the likely outcome in court is, and, "Here's what we might ask for, but here's where we're willing to go." I find a lot of people are not well-prepared for what to expect at the end of the mediation or during the mediation, and they're really disheartened. And suddenly I walk in and I'll say something like, "Well, can you afford this house," and it hasn't ever been a conversation they've had with their lawyer. And then it's a really hard day because that should not be the first place where that conversation happens.
I also think advocates, the lawyers that I work with are such fabulous advocates, everybody starts to believe their own BS.
Seth Nelson:
Never me.
Pete Wright:
Now we're getting somewhere.
Seth Nelson:
Never me.
Tami Sbar:
Never you. So the parties really believe, the lawyer will make a speech to me about something that they're going to argue in court. And I'm like, "Yeah, whatever." But the party isn't like, "Yeah, whatever." They're listening, "Yeah, my lawyer is going to get me this in court." And I'll sometimes say, "Well, is there a likelihood that this is going to happen?" And the lawyer's like, "No, this is a very aggressive argument. We're not going to succeed in this in court, but we can in good faith maybe make this argument," or whatever. "We can take this position now, but we have to be willing to move off this position." Well, but we're skilled negotiators and the parties often aren't, and they get really entrenched in their lawyer's perspective and that position, and then it's hard to move if they don't understand that was just a position and-
Seth Nelson:
Right, and the issue with that too, Pete, is that the lawyers can really get in the way. And like we talked about in our previous show, how do you prepare for mediation? I tell my clients, as we discussed in the other show, and Tami knows this just for me working with her for all these years, Tami usually doesn't spend a lot of time in my room with my client. In fact, what happens sometimes is Tami will go into the other room and be there for two hours, which people think is a really long time, but it's not. And the magic of mediation is we're all focused on it at the same time where maybe I sent over an offer to the lawyer and I haven't heard back in a month because they were in trial, then they were on vacation, then they have to get their client in, but now it's spring break and the client's gone with the kids, and so it's a month before you get an offer back.
With Tami, if I have to wait there for two hours, I'm getting a response in two hours. And it's not a long time in the-
Tami Sbar:
In our world.
Seth Nelson:
In our world. It's a long time in other people's world. But what happens is Tami will come back after two hours and she'll say, "Well, they let me go through everything they said before you say no," or go off on a side rabbit hole because Tami's got to get through everything. And I write down everything she says on what their offer is in response. And because we're prepared, we might be able in 20, 30 minutes be like, "Do this, this, this, this and this," and Tami's like, "I can't go back yet." I'm like, "Let's keep it moving."
Tami Sbar:
They need a break.
Pete Wright:
You had two hours. They need more than 30 minutes.
Seth Nelson:
Right, and also Tami's so skilled at understanding people's perceptions because that's what she deals with, maybe they need to think that this was a harder sell in our room. Well, it was a hard sell. I had just maybe done the work with my client previously so today it's not as hard because we're prepared.
But it's really difficult when the lawyers aren't preparing their clients because you'll just sit there and go in circles. And what Tami's very skilled at is she'll solve one problem and then some clients come up with another problem, and another problem, and another problem. And then she'll be like, "Well, which one's more important? Ask your lawyer. We're not going to get all these things."
And so I know you opened the show with she's the referee, but she really doesn't make any calls. She's not calling balls and strikes. She's really just trying to get a deal. But Tami, why don't you talk about, we'll open up to make fun of me, what do lawyers do in mediation to screw things up?
Tami Sbar:
Well, sometimes they're really set, they have a posture on a certain issue and they like it a certain way. I mean, we're all that way. We like things the way we like them, but it's not your parenting plan. It's not your Christmas holiday. And so they sometimes don't listen to their clients when the client is trying to express something that doesn't maybe matter to them. And sometimes something a person thinks doesn't matter, might matter in the future so it's important for lawyers to inform, "This is how this could impact you negatively, but it's okay if you want to still do it this way."
I'll give you an example. I'll have people who maybe say that holiday is really important to my spouse and it's not that important to me. I'm going to let her have it every year. I'm going to let him have it every year. Well, but that person might remarry and it might be important to their new spouse and they might have more children and there's things that... And so it's important for a lawyer to be able to say, "I really want you to think about this. Look at it from this perspective. But if this is what you want to do, this is what you want to do." But I have some lawyers who will say, "Well, that's not really, that's not how you're going to do it," and I find myself on occasion saying, "I don't know if we're listening to Mr. Smith. Maybe we need to try and hear what it is."
For example, in Florida now there's a presumption of 50/50 time-sharing, and yet some parents logistically can't do a 50/50 schedule. They just can't do it. So why not talk about the practicalities of these people's real life so everyone has expectations of what is actually going to occur instead of people just agreeing to stuff that they're never going to do. And sometimes I think as lawyers because we get so embedded in winning and how we look at things and prevailing, sometimes what is prevailing in the general sense is it may be best for this particular client.
So I think hearing the people is really a skill. Certainly knowing them well enough to understand them because we do have people, I listen in the mediation at the beginning I'll tell people, "Not all cases settle the first mediation," and there's two main reasons. There's a lot of reasons, but the two main reasons are somebody actually needs more information, whatever it is, a business valuation and appraisal or something or somebody's not emotionally ready. And I think lawyers can still come to mediation with a person who's not emotionally ready to settle to help them take that next step to be ready to settle. And maybe they don't have to come back to mediation in the future to settle, but that process of actually starting to really look at this being over needs to happen for some people.
Some people don't want their divorce. They don't want change. You got all different kinds of personality types, right? Seth was mentioning sending out an offer a month before and not getting a response. Sometimes the lawyer's trying to get a response, but the client can't commit to anything, and then you need that pressure of being in this process to get something committed to.
Seth Nelson:
And to go back to listening to the client, Pete, I had a mediation with Tami once and my client literally was just giving away the farm from a legal sense. The majority of what my client was doing would never happen in court. It's one of those things where even if the judge messed it up, he's not going to mess it up or she's not going to mess it up this bad. It was so one-sided against my client and Tami looked at me and she goes, "Seth, I literally walk into this room and I picture you are sitting in your chair there with a telephone cord wrapped around you because you're not allowed to do anything because my client was so adamant of, "Seth, Tami just gave me an offer. I want you to tell me the positives and negatives of what will happen or may not happen in court, but you've told me from day one, this is my decision.""
And I would do that and then my client would say, "I'm not taking your advice. I want to get this done. I'll overpay. I'll do X. I'll do Y, whatever the case may be," and we end up getting an agreement.
Now, from a legal perspective, I had already prepared a letter to my client saying, "He's entering into this agreement against my advice," because I'm going to protect the file, but I had prepared him for all that. And literally I would just look at him, I'm like, "I don't know why I'm here today. You're not listening to me at all," but I respect the right for the client to make their own decisions. Because like Tami said, it's their parenting plan. It is their money. It's not mine. I've done my job. They're the decision maker.
Pete Wright:
What's so interesting about this is that for both of you, for me, have just turned mediation upside down. We're so used to talking about the courtroom experience where we have a central authority figure in the judge and authority trickles down. But what you're saying is going into a mediation the authority is yours, divorcing couple, to make these decisions. And it's not as if Tami's going to sit there and tell you what to do, when to be quiet. You're not vested with that kind of authority. It's theirs to make good decisions or bad and listen to the advice of counsel along the way.
Is that a fair assessment?
Tami Sbar:
Yeah, I think so. I control the process of the mediation. So if someone starts to say things like, "Well, I don't have any choice. I have to do this." Well, I'm going to stop the mediation because you do have a choice and your choice is to go to court. And so you can choose to keep negotiating. You can choose to stop. You can choose to fight, whatever you want to do, but you always have a say in the outcome of the mediation. No one forces that outcome on you. So when people start to get really dramatic or cry a lot, we'll stop because they have to stay in control.
So in that way that's the only way I really control the process. The only other thing I do is I'll often ask the lawyers, "Can you tell me what the likely outcome of this is in court," or, "What is the likely outcome in court of this," because people should still be analyzing how they settle their case based on, well, if we don't settle it, what's going to happen?
I was just in a big mess the other day and everyone was fighting over something and then one lawyer said, "I don't know why we're talking about this. This will never happen in a courtroom." I mean, it was in a group with four lawyers fighting over something, and this isn't going to happen in a courtroom so whoever wanted it needs to let it go. And then everyone was like, "You're right. We need to move on," because it's not happening just because the party wanted it.
Seth Nelson:
Right, here's an example of that in Florida. There's no requirement under Florida family law that you pay for your adult child's college education. Now, we typically don't think of our college kids as adults, but in the law, they're 18. They're adults. You have no responsibility to pay for that college education. So some parties will be like, "I want them to pay half. I want them to pay a percentage." And I'll say, "I can't get that for you because that will never happen in court." And they'll say, "Well, you know what's going to happen, she's not going to pay for any of it and I'm going to be stuck paying for college." I said, "Yep, but let me ask you this. Weren't you going to pay for your kid's college anyway? You're not going to screw your kid out of a college education because the other spouse isn't going to pay a percentage, but you're just pissed off about it." So I said, "I can't get it."
Tami Sbar:
But I can help with it. Sometimes I can say, "Well, okay, you're going to do this anyway. Is there something your spouse wants that you're willing to give them if they agree to pay for college, or is there something that we can do?" Or sometimes the spouse will say, "Well, I can't pay 50%, but I'd be willing to pay 30% because we have a 70/30 pro rata," and then the other person's getting 30%. They never get that from a court, but maybe there's things people will sometimes negotiate because it's important to them. Or maybe the person who's not paying says, "I want that person to pay, and I'm willing to give up some period of alimony in order for them to pay for college." I mean, there's things people negotiate.
Seth Nelson:
And you can do that. The judge can't order that in trial, but the judge can enforce it if it's an agreement that becomes a court order, so there's some nuances there. So sometimes you send it over and sometimes you don't. You just have to be careful with it. But what I explain to my clients, let's say I'm representing the wife in this hypothetical who's saying, "I'm going to give up two years of alimony so that will help pay for college." I say, "Well, let's be clear. You're helping pay for college because you would've received that alimony, so let's just be clear about what's happening," and that's really, really beneficial.
Pete Wright:
I'd like to transition to I guess higher conflict mediations. How do you address, Tami, power imbalances between couples in mediation when there is let's say a significant financial disparity between the parties or maybe allegations of domestic violence or those sorts of situations? How do you approach those?
Tami Sbar:
Seth mentioned that I always mediate with people in caucus, which means separately. That's one of the reasons. It eliminates a lot of the power imbalance just simply by putting them in separate rooms. And I know that when we are trained to mediate one of the... A lot of the mediation proponents believe you should always be together wherever possible and caucus should be your last resort. I just don't see it that way. It's not successful in my business. I just never find so much value in putting everyone in the same space. And actually I think it makes everything slower and longer and more emotional. So when we put it in separate spaces, we can speak more freely and now they have to trust that the information I'm relaying between the two rooms is properly relayed, but that's what my job is and that's what my reputation is to be able to do that, to accurately give information between the two rooms.
The power imbalance like for domestic violence, that is the best way is keeping them separate. The difficult part about what we do for a living is these people are still stuck with each other if they have kids. I mean, you could do a litigation on a slip and fall. They don't have to see each other at Publix. Just because you sue Publix, maybe you go to a different grocery store, I don't know. But when you have kids, you're going to the same soccer games and graduations and whatnot. So a lot of times what I'm doing is trying to help people hear the other person.
So I can talk to a very powerful, very wealthy guy who says, "My wife is a greedy," whatever. "She wants all this money and she's been shopping erratically since the divorce was filed." And I say, "Well, is that because afraid that she's not going to ever be able to buy anything after this is over? Is that possible?" And sometimes people go, "Yeah, well that's very possible." Or, "Is your spouse fiscally savvy? Do they understand money?"
I work with some people who don't even understand the difference between net and gross for taxes. So they'll say, "But my spouse makes all this money." And you're like, "Wait, well let's take out what the government, let's get down to brass tacks and talk about it." Or in Florida, if you have investment income from your assets, that counts as part of your income. But a lot of people who aren't really fiscally savvy don't understand that if you had a million dollars in the bank, it throws income so they still look for support.
And it's hard to explain those things to people in keeping them separate and letting the person who's the payor have a little bit of empathy maybe for the fact that this person is fearful and isn't necessarily being greedy but is concerned, it can help us change the dynamic of the negotiation. What does your spouse actually need to live? And that's maybe a perspective they haven't thought about because they're only thinking about what do they want to keep and not pay, not how does this person move on.
Seth Nelson:
And the other thing that I use a lot in that scenario, if I represent the high-income spouse, Pete, they're always complaining that their spouse has been spending too much over the years. And early in representing them or mediation I'll be like, "How much is she spending a month?" And let's just pick a crazy, "Oh, my god, she's spending 40Gs a month." And I'm like, "Okay, well we just got an offer on alimony for 25. You are getting a $15,000 net raise because you're not spending," so you've got to reframe it. You've got to reframe it. But that analysis, whether it's $40,000 a month or whether it's $5,000 a month, is the same analysis. And I had one client that just got it. He was like, "I want to take their first number because I'm doing better now."
So you just got to really, and what Tami does a great job of is having people look at this from different angles and how that ultimately will then change the outcome of a case in a positive way if you can get it settled because what lawyers do is we're defined within the law. And in court I don't get to talk to the guy about, "Well, are you getting a raise?" That's not going to come up. But in the mediation you have a lot more leeway and you can draft documents that the court's just never going to be that nuanced and specific because as you know, when we had Judge Tibbles on, they had 750 cases. They don't have time to spend eight hours drafting a final judgment and parenting plan. It's just not there.
Pete Wright:
When you think about finding a good mediator, how do you get involved in cases, Tami? Are you brought in by the attorneys or does the couple have to find you? How does that relationship work?
Tami Sbar:
It's with me because I do mostly work with lawyers, it's the lawyers. They're repeating using me and then somebody, now with Zoom, I have lawyers from all over the state because somebody will have a case with a guy from Miami and then the guy from Miami says, "Oh, I'll use you again," and then you start to broaden who uses you, but it's word of mouth and lawyers.
Pete Wright:
Well, that was my next question. Apart from you working in the state, there are no other jurisdictional requirements for using you as a mediator. I assume you can't work across state lines, you can't do a couple in Louisiana?
Tami Sbar:
I don't know. I don't know the rules because we're not practicing law. So I mean, I am a certified mediator, but you don't actually have to be certified so I have no idea if you could be from another state and mediate here if you had that kind of a reputation. I mean, one of the things that-
Pete Wright:
It's not like you have a lot of time to start shopping around for clients in other states.
Tami Sbar:
What we bring to the table if you're a lawyer in the community in the jurisdiction is that you understand the law and you understand the law in your jurisdiction. So it's even different in Hillsborough County to Pinellas County. There's subtle differences in how the courts work and sometimes just knowing some of that can bring something to the table.
I think your name gets out there. People will go, "Such and such really helped me or settled my case," and I've had people tell me that my name came up a few times. Or they'll actually, the lawyer will say, "We're going to use this mediator," and they'll start to ask their friends, "Have you heard of this person?" So there's some very, very good mediators that get a reputation and a lot of it is it's an intangible thing. It's that counselor thing that you're talking about that being able to... One of my skill sets is probably just being able to say something that's really tough to hear in a nice way, or maybe in a not so nice way depending on how many hours we've been at the mediation, but it's talking freely to these people about the things they need to hear.
Pete Wright:
You mentioned you're a certified mediator. What does that entail and what does that entail for your ongoing continuing education?
Tami Sbar:
The Supreme Court of Florida has a certification mechanism for the different areas of law. So I am a certified family mediator. And what it means is I don't know how many hours they have to take now, it's like maybe 40 or so hours of class to get the certification and then they have to sit in on a certain number of... I mean I've been certified since, I don't know a really long time, probably sometime in the nineties.
Pete Wright:
You don't need to out yourself, Tami. It's okay.
Tami Sbar:
No, it's I don't know what the requirements are now. But for me, every two years I have to take a certain number of continuing mediation courses just like my, I take continuing legal courses, I take continuing mediation courses. They have requirements that you have to do.
Pete Wright:
I ask because if I put myself in a position of somebody listening to the show thinking about how do I know that I'm getting set up with a good mediator, how do I test, especially if the mediator is coming from one attorney or an opposing attorney, how do I know I'm getting set up with somebody? How do I feel comfortable with the relationship I'm going to have with this mediator?
Tami Sbar:
No, I don't think there's a one-size-fits-all for a personality. So I do cases where they've been to other mediators and it wasn't effective. And I'm sure there are many cases where someone's been to me and it wasn't effective and they went somewhere else and they were able to. And sometimes it may be the mediator, but a lot of times it may be where they are in the case and where they are in their minds about being ready to settle because you can bring a horse to water, but you can't make it settle, so it has to want to settle.
But I think that when you, in Florida, we have mediation and diversion services at the courthouses where they do a very inexpensive sliding scale mediation where you can go and you can have a mediator, and those people have a lot of skill because they do so many mediations. They don't have a lot of time. They're usually two-hour blocks. So I do mediations that can last 10 hours. It's not unusual for us to be really here a long time working through different problems. And so private mediation, they're easy to talk to people about because people have heard of us. Anyone who's getting a divorce has gone to a mediator, so they start. And I'm sure people read reviews and stuff like that.
Pete Wright:
Yeah, right. Is there a ratemymediator.com?
Tami Sbar:
I don't know. It'd be a good thing for someone to set up probably.
Pete Wright:
Right, right.
Tami Sbar:
We would get blamed for the not settling. My ex is a jerk, so I hated the mediator.
Pete Wright:
Of course. Of course. Well, I'll tell you, Tami, as always, it's a treat to talk to you and thank you so much for educating us.
Tami Sbar:
You're very welcome.
Seth Nelson:
Pete, we just got a listener question in though.
Pete Wright:
I know, I know, and I was going to delicately transition to let Tami know because we did not tell Tami that we're going to throw a listener question into the mix.
Seth Nelson:
You should see the shit I throw at her at mediation. She doesn't see that coming yet.
Pete Wright:
All right, well we have this listener question.
Seth Nelson:
How about, "Tami, there's a third kid no one knows about. We got to talk about that, okay?"
Pete Wright:
All right, so this question came in for the show and it's a little bit long so I will beg your patience as I read for the very first time this question. Here we go. "Hi." Hello. "Loyal fan here." Thank you. "We are in the final throes of the divorce. I think my ex is dragging it out. The main financial issues are settled and I'm thinking of what else I can work on while he seems to want to be engaged in discussion. I listened again to your college episode and I realized there may not be an answer to this, but I would be interested if you or any guests have seen something like this work before. The case is in a state where college costs are not addressed by the court. I have a great financial planner from the podcast," a referral from the podcast. Outstanding.
Seth Nelson:
There we go.
Pete Wright:
"And our child is in elementary school. Dad always said that his substantial inheritance would mean the college costs would be covered without a problem. Obviously, I understand things have changed and will probably change more. Have you seen any out of court settlements or arrangements where co-parents have been able to plan together to finance college? Even though, as Seth says, we are not in a place where we're sharing a meal together. I wonder what kind of structure could work for this or if it is like parallel parenting where I should just give up. Thank you so much, guys."
What do we think? How do you want to approach this question? Does that make sense?
Seth Nelson:
Yeah, this is the perfect example of what we were talking about. We were talking about the house and we mentioned this college so this is a great question for Tami on how you approach this at mediation. So as this listener question states, you don't get this in court, so what ways can you potentially get this? So maybe we talk about, hey, this is what we said. Also, what he's always said about the inheritance.
Inheritance, as we've covered before, an equitable distribution is a non-marital asset. So whoever receives the inheritance, if it's not commingled, it's going to be theirs. So one way what I would be prepping my client for if they were the one receiving the inheritance is to see what, if anything, we can do now maybe with their parents to say, "Hey, are you willing to set up an irrevocable, it can't be changed, trust for the kids so the college is taken care of and it's just off the table."
Now the parent has no, by this I mean grandparent, has no obligation to do that, but if they're willing to do that, maybe that solves the problem. Maybe they don't like the fact that their son might not have the money or use this inheritance for something else other than college, so they might be incentivized as the grandparent to do this.
Another one would just be saying, "Look, if we do this," to my client, "If you say you're going to pay for a state college or you're going to pay up to so much," and I'm very specific in my wording, "is you'll pay up to $40,000 a year for any and all college expenses. But after that, it is what it is, there's no guarantees. So whether it's room, board, tuition, travel, spring break trips, whatever, back and forth home, you'll pay up to 40 grand a year," and I'm just making up a number, "you can maybe get a concession from the other side on something else."
How would you handle this in mediation, Tami?
Tami Sbar:
Well, we would talk about do we want to fund a 529? Do we want to buy a prepaid college fund? Maybe the grandparents are willing to do that with the money that they know. So this person doesn't sound like they have control over the funds yet, unless if they already have the inheritance though. Let's just assume they've inherited and it's his non-marital money. He might say, "Well, I'm going to do this anyway. I'm going to go ahead and agree to fund this money into this particular account and that way we know these kids get state education four years, we've prepaid the Florida prepaid plan," or so there's different ways you can talk about what you are willing to do.
I've had cases where they take equitable distribution and they say, "Okay, when we sell the house, we're going to put this much aside in an account for college." But I will say that usually happens when the kids are older and closer to the college age. When they're younger, we're usually talking about how we're going to fund the education because you don't really know where they're going to end up or what they're going to do, but when you just had a person kid wants to go to a school, it's going to be a 100K year, how are they going to do that? It's part of the negotiation because even though it's not something the court will do, both of these people care about where those funds come from.
Seth Nelson:
That's exactly right.
Pete Wright:
And I think that answers the bottom-line question, have you ever seen something like this work? Well, it sounds like you have. It sounds like there are options.
Seth Nelson:
Yeah.
Tami Sbar:
Oh yeah, it works. I mean, you'll hear bad stuff too where they agreed to put a kid in college and the parents said they're going to pay so much and they weren't clear, you know how Seth said he's very detailed in the language, well, the 18-year-old can sue you under the contract if, and I don't know, I had a case once where they were complaining because the kid wasn't going to school full time and the dad was having to pay a certain amount per month for the benefit of this student who wasn't functioning well where the father no longer has power to say, "I'm not going to pay for you to go to school anymore," because he had some contract he signed when the guy was seven. You have to really pay attention to what you're agreeing to and how it's going to... What happens if they don't use their prepaid? Where does the money go? Well, we usually put in, it's going to go to the kid and it's going to go at this time. We have to be detailed about it.
Seth Nelson:
And sometimes that's where you bring in a state and trust lawyer to draft maybe a trust document. This could be a lot of money so you want to make sure you're handling and being detailed very early on. And when you're having an account, some of the stuff is, well, how do I know that I, know that it's really being spent on that? Well, you can have access to view the account, but you don't have authority to spend the money.
Or you also put in that, and it's like child support in Florida that it gets paid till it's 18. There's always exceptions at 18 or graduation from high school as long as there's a reasonable expectation that the child will graduate before their 19th birthday. We know the concept is you don't want to cut a kid off in their senior year.
Okay, same thing for college. We'll pay so much a year as long up until the child is 22. And after that, there's no more obligation. You have to have these endpoints. Whenever there's anything for someone to do or there's an obligation to do something, you need to put timeframes on, every single time because. And sometimes I do date certain. You'll pay up until December 31st, 2026, and that's the date.
Pete Wright:
Then it stops.
Seth Nelson:
So it's really clear.
Tami Sbar:
Because you don't really want your 35-year-old calling you up and going, "I decided I'd like to go back to school and you made a commitment to my mom 30 years ago."
Pete Wright:
By the way, state college costs are now 100 grand a year.
Tami Sbar:
Exactly.
Seth Nelson:
Right, I don't want my 35-year-old calling me and asking me for any money at any time.
Pete Wright:
We're done with that.
Seth Nelson:
I'm asking the children to listen to only part of this episode.
Pete Wright:
I'm going to cut that out and make it your ringtone. I'll make sure to call you when you're at family dinner.
Tami, this has been a treat. Thank you so much for taking on the impromptu question. It's sure good to see you. We appreciate you so much.
Tami Sbar:
You're welcome. It was a pleasure.
Pete Wright:
And thank you everybody for downloading and listening to this show. We appreciate your time and your attention. Don't forget, if you want to get those questions in, howtosplitatoaster.com and just click the button. It says, "Submit a question" and we'll answer it on a future show. On behalf of Tami Sbar and Seth Nelson, America's favorite divorce attorney, I'm Pete Wright, and we'll see you next week right here on How To Split A Toaster, a divorce podcast about saving your relationships.
Outro:
How to Split A Toaster is part of the TruStory FM podcast network, produced by Andy Nelson, music by T. Bless & the professionals and DB Studios. Seth Nelson is an attorney with NLG Divorce and Family Law with offices in Tampa, Florida. While we may be discussing family law topics, How to Split a Toaster is not intended to, nor is it providing legal advice. Every situation is different. If you have specific questions regarding your situation, please seek your own legal counsel with an attorney licensed to practice law in your jurisdiction. Pete Wright is not an attorney or employee of NLG Divorce and Family Law. Seth Nelson is licensed to practice law in Florida.
