How a Divorce Mediator Turns Conflict Into Clarity

0:00Not every mediator has to be an attorney. So having the attorney education and the experience doing New York, Montreal, and family law, I could explain how New York law works, what the deretions look like, what the calculated results would look like. And in my experience, what judges facing similar fact patterns have done before. So I say, if that's helpful for you, and you can't resolve this here, you're gonna have to go to a court. So I can help them get unstuck by telling them the reality of what might happen in court. Yeah, of course. And educating them on how the law works in New York. Deborah Wittsen is the founder and managing attorney of Wittsen Law, PLLC, a New York family law firm focused on divorce, custody, mediation, and collaborative law. With more than 30 years of legal experience, including work as a special victim's prosecutor, Deborah has built her practice around helping families navigate difficult transitions with less conflict and more control. I've had a number of mediation couples reconcile. They say, well, now that you've taught us how to effectively

1:01communicate, we actually leave the mediation session and we go home and we talk through things. And we're like, maybe we can make this work. So I've seen people that come and they say, my fiance and I did an AI pre-nuptial agreement where you review it. And though I would not have anybody go sign one of those things, there's very technical things in New York state that need to be in marital agreements and pre-marital agreements and post-nuptial agreements. So AI doesn't always get that part right. So they might think they have an agreement. They sign it and then when they get divorced later. It spans the globe. Like a super high school, Internet Elvis. Ready? Fire. Today, Apple is going to reinvent the bomb. It's not over until our weird. The Living Your Legacy podcast for those who live to leave a legacy. That's extraordinary. That's awesome. Oh, that is sensational. Open.

2:02She's coming with the latest. And Paul is the fastest man on the planet. You can live your dream. Hey, welcome back everyone to another episode of Living Your Legacy podcast. I'm your host again, Jay Slangin. And we got a special person here from America's Top Lawyers. And yeah, please introduce yourself. And what kind of lawyer are you? Where are you from? Hi Jay. Yeah, hi. I'm Gemma Wittsen. I am an attorney and mediator and collaborative attorney as well. I'm the founder of Wittsen Law. And mediated online solutions. We practice law from Albany up to the Canadian border in New York State. And the practice mediation everywhere in the world. So you're up in Albany? We have five offices from Albany to Platsburg and everywhere in between Saratoga Springs. We have five locations. Yeah. So it must be nice down here in Miami, but it's humid. Summer is the best time to be in the Adirondoc Park of New York State because everything besides summer

3:02is winter. So Miami is hot compared to Adirondoc summers. But it's always great to be in Miami. It's a very fun, vibrant. I got to say, you got to prepare for the humidity and the hair. Right? When you're coming down to the studios, the humidity does have an impact on the hair and the poofiness. So. Yeah. So you're still living in the mountains with no humidity. So it's a little bit challenging here today. So so mediation. Yeah. So you're getting people to be in the room, right? Or sit down at a table and be in separate rooms, right? Tell us about mediation. OK. So first, I guess I should say that the law firm and the mediation is all focused on divorced family law, custody, pre-maps, post-maps, and stuff. And so in that context, right, we're just doing those kinds of mediation. Mediation can take a couple of formats. Some people want to sit around a table together and they're able to do that without shooting knives out

4:04of their eyes at each other. The pandemic had a lot of downsides, but one of the websites is everybody got used to virtual meetings. So we can mediate with anybody around the globe. And I can be anywhere I want to be around the globe when I'm doing that. And that modality works really well for a lot of people. I think the people in more old school and haven't quite adapted to video conferencing and remote communications like to sit around the table. So on the spectrum of this divorce, mediation, custody battles and all that, are people more kind of trying to sort things out or are people more at their throats? I would say that people who are inclined to consider mediation are even slightly, if not terrifically, more inclined to be cooperative and to compromise where they can compromise without sacrificing important values and things like that. But there are some people who are really

5:06in high conflict relationships. And sometimes maybe they've tried accessing the courts and they realize that if they're going to be high conflict against each other in court, that getting successful outcomes without spending a ton of money becomes a problem. And judges get frustrated with high conflict litigants. And so sometimes they both get a little chastised or spanked legally by the judge for their hostility. So I'm specifically trained also in high conflict mediation and co-parenting mediation and sometimes co-parenting relationships are where people really find the friction. The rest of their divorce separates them out financially from each other, disentangles them. But kids keep them entangled for ever, really. So what are your thoughts on marriage these days? Because you get all the stories, right? You see what I guess what hasn't worked, right? I mean, it's kind of sad to see what was once,

6:07I love you, marriage. You think this is the one. We all still have that kind of thought. This is the one, marriage is forever. And then what is it? 60% now marriages and divorce? When you measure it, it occurs anywhere from 50 to 60. Yeah. Those aren't good odds, right? So what's your thoughts? When you think about those statistics that you've just cited which are fairly accurate, and you think about how many people are choosing not to marry and they're co-habiting, that if you're inching towards 60% divorce, right? With a smaller pool of married people, those people are not getting married. That's alarming. So what do I think personally? I heard you thought about that. Yeah. What do I think personally about marriage? Well, I had one short marriage where my then husband was unable to be monogamous and that was painful. And so even that, we were married like two years.

7:07No children. I had in my head, the heavily ever after. I had a vision of what my life was going to look like 50 years into a marriage. And it was really sad. Now you've transitioned into helping people get their happily ever after. After the happily ever after didn't really work out. It's a new kind of path, right? Like a path where they didn't think that road would ever exist, right? But you're still trying to get them to the happily ever after. After what? Yeah. I think that people are looking for new happiness. And for some people, that may be another relationship with no marriage next time around. Other people believe in the doctrine of marriage and the legality of it. So there's a lot of benefits legally to having a marriage versus a domestic partnership. So my success story was I spent after my divorce, I don't know, three months crying a lot and then picked myself up by my bootstraps

8:07and started looking at what could I do better and do differently in a new relationship to avoid my blind spots in my marriage that led me to not see what later when I learned that this was going on, it was fairly obvious if I had just opened my eyes, but also to look inside and really assess what do I want out of my next relationship and how can I achieve what I want in a relationship. So I did several years of therapy and that's not everybody's gig, but it really worked for me and I'm now 36 years into my next relationship. We live together for five, test it out, make sure and we've been married 31 years. So I believe in marriage and I believe in relationships that work and when they work and they're healthy, that's great. When relationships are fraught with, you know, I see people unfortunately where there's domestic violence or I mean, all forms of domestic violence, which might be financial control and abuse,

9:09just the exercise of power and control in the relationship, it might not mean pomellion somebody, but it, yeah. When those relationships aren't healthy, then in my opinion, it's a good thing that they end and if their children witnessing that, it's an even better thing that the children don't grow up learning that that's what a marriage or a relationship looks like. Yeah. So sometimes it's the right thing to get out of a relationship and take a fresh look. Yeah, and we had a recent guest here who was a counselor, but specifically on the niche of infertility. Right? And not just the woman, but it could be the man or it could be the couple. And she said the key to fixing that is kind of just working on the individual, having them focus on themselves, kind of rediscovering themselves. And that can sometimes rekindle the relationship, when they both know, all right, why it happened, right? Not just, you know, a guy has a dick, right?

10:11It's more than that, right? So she kind of delts deeper into that and kind of just fixes the individuals, right? So is that kind of with your mediation, is it kind of figuring out what the individuals want, right? And kind of how they can come together, right? So we're obviously not doing relationship therapy, but I do a lot of communication and site and training. So there are the way I mediate, is there ground rules that the parties contractually agree to. So no talking over each other, no name calling, don't talk about the past, we're talking about today in the future because we can't change the past. No blame, you know, it's gotta be a safe space where everybody feels heard. And then while I'm getting to know the communication styles of the couples that I'm mediating with, I pick up on things, you know, been trained to listen for things, I pick up on things that may cause me to put other ground rules and effect rate then and there,

11:12but I also give them tips. So if you want a common tip is somebody says, I want to get the marital home as part of the divorce settlement because I can't for a second think of your slutty new girlfriend sleeping in my bedroom, right? So I say make your proposal without the justification because in my example, that justification was very inflammatory. And what is that likely to do to the listener, right? And like what do you mean, you know, my new girlfriend isn't slutty, blah, blah, blah. So it takes the conversation in a very unproductive direction. So I say make a proposal on facts and then stop talking and let the other person respond. So I would like to get the marital house as part of my settlement package. Okay, party across the table. Would you say to that, how would you feel? That's like saying, all right, chill out, right? And it's like, but when you tell someone to chill, it's like, right? But yeah, I feel like, okay,

12:12X-Nay on the slut stay, right? Yeah. But yeah, so have you ever heard of a guy, right? We're on a podcast, right? And there's a podcast so that he's a divorce lawyer in New York City. I think it's James Sexton. The name sounds familiar, but I'm not sure of his name or his band or how. Yeah, yeah, you gotta check him out. What is messaging is? He's just got a very interesting way to talk about, you know, divorce, he's a divorce lawyer in New York City that's handled, you know, massive cases. And just the way that he talks about it. And he now he's got this unique kind of perspective also on love and contracts and marriage, right? On from a contractual kind of point of view. But yeah, check it out. Interesting dude, funny guy, right? And he's kind of, you know, always on the podcast rounds, you know, so he's out there written books or whatever, you know? But yeah, I mean, what is,

13:14is there like a number one kind of thing that just takes mediation and just makes it fall apart? I mean, you're in high conflict, divorce mediation, right? So that just means that these people just add each other's throats, right? They can't, they can't mediate, right? So, but they're trying to get the kids, they're trying to get the house, they're trying to get everything, right? And just can you talk to us a little bit more about that? The ground rules are designed to sort of whatever the emotions are. Seems like it's impossible, right? The emotions of perhaps going to always be there, but the behaviors can be monitored, engaged. So there's certain situations which are so high conflict that I will say, let's do written proposals. They're going to come through me and I'm going to take out all of the inflammatory language and the justification language. You were so terrible to me that I deserve this, right? That sort of stuff. I'll excise that out.

14:14And then I will streamline the modified proposal language, get it, it's approval by the party who's proposal it is. And then I will share that proposal with the other side and I'll do the same back and forth. So sometimes just not limiting real time verbal communication or having them be on video. So I can actually mute a video sound if I need to. And it just puts that space and it's obviously a much more neutral communication format than sitting as close as we are, perhaps. Absolutely. Even when you're in two separate rooms, right? When the media is walking between rooms they're kind of looking through the crack or the door opens, like that motherfucker, right? You can feel the blood pressure and the temperature rising when things starting to get off the rails a little bit and you're in person and it's a lot easier to be calm and detached on the video. But you eventually get there. Yeah, I eventually get there. I've had a number of mediation couples reconcile. They say, well, now that you've taught us

15:15how to effectively communicate, we actually leave the mediation session and we go home and we talk through things and we're like, maybe we can make this work. So yeah, that's a happy, I've lost a client. That's a good media, but it's been a really good outcome. That's your testimonial. Mediation's so good, the marriage gets back together. Yeah. So I've had some people, I think I've had two that went to, they said, we're going to go get lawyers and fight about this stuff. And I was like, well, that's unfortunate, do you have free will? Why is that? That's fine. And then came back and said, oh, the whole experience with the lawyers just made it worse. So we're going to take a stab at it. And there was a break of time in there. So it took about three and a half years from the first time that they met with me. They left mediation for a while, got lawyers, came back and then at one point it looked like it was blowing up and they're like, maybe we just need to give up on this. And I convinced them to give one more try and we got it over the finish line. So, but I don't know, I've had one where a couple had an infant

16:17and the mom wanted to move from New York State to Florida and the dad wasn't co-relocating and there was just no compromise to be had there. He was not going to live a whole East Coast away from his newborn and she was bound to determine to try to go and ended up she stayed in New York and they worked it out and she just couldn't relocate. And is there ever a time when you kind of, because your role is to mediate, right? But it's your every time like you're just like, oh my God, this guy's an asshole, you know? Like and you have to be like, he's trying to be like, all right, man, we're gonna freaking, you know, say no to this. So I know that you're not, right? But kind of like what's going through your head? So I have to conduct myself at all times with scrupulous neutrality. So I neither parties private attorney when I'm mediating. Sprupulous neutrality. That's a term that I would never say. Yeah, nobody's important for trust. They want trust me. Oh yes. So if party one thinks I'm having sidebar conversations

17:19with them or private emails or I'm taking phone calls from them, the other doesn't aware of. So when they sign the contract to engage in mediation with me, everything is three way. We're either sitting together, we're on a three way call or we're on a three way email. Yeah. So it's maintaining that neutrality. Do I have my own personal thoughts and opinions about people's positions and how reasonable or appropriate they are, of course I do. Yeah. I wear my neutral media interface at all times. But it also must be so interesting. I mean, the stories that you kind of hear because you are the referee, well, not the referee, but just the listener of, man, these two stories, how are they going to end? Yeah. And sometimes where I can be effective is because not every mediator has to be in attorneys. So having the attorney education and the experience doing New York, Montreal and Family Law, I can tell them if they, let's just say the wife is stuck

18:22on, I want a whole lot of alimony for a whole long time. And the husband is like, I'll give a little bit of alimony for a little bit of time, but they're really far apart. I could explain how New York law works, what the deretions look like, what the calculated results would look like. And in my experience, what judges facing similar fact patterns have done before. So I say, if that's helpful for you, and you can't resolve this here, you're going to have to go to a court. And here's what you could be expecting to have. And I can't predict the future with 100% certainty, but this gives you some basis. That may be enough of them because maybe the wife sees in my explanation, I'm not entitled to 30 years of alimony, I may be entitled to 10. Or I want twice as much alimony as no Deborah has explained is typical based on our respective incomes or something. So I can help them get unstuck by telling them the reality of what might happen in court. Yeah, of course. And educating them on how the law works in New York. And I'm sure the realities in their head

19:23all want to take this guy. And I want 30 years, actually, let's take a breath. Let's bring you back down. And let me tell you how it is. So that kind of gives them that playing field. And everybody going through a breakup has well-meaning friends and relatives that know Jack Shit about how the law really works with respect to the door. But they're giving them, they're in the ear of the friend or family member. So they come in with all these. Well, my sister-in-law said, I should get the house in the pension and the kids and whatever. OK, well, your sister-in-law doesn't know what she's talking about. But OK, so I have to be mindful of, listen to the experts. I always invite my mediation clients to go get independent attorney advice before or during or before they sign a mediation agreement that I draft for them. So I welcome lawyers who know family and match for money all along. But I say, trying to remember your friends and family

20:24mean well, that they don't know the law. It's almost like the situation of in Harry Potter, you've got the wizards, and then you've got the muggles. Then the muggles are the ones that don't have magic. And so these outside family members that don't know Jack Shit about, let's say, magic. It's like, OK, you're a muggle. This is the magic world of we have to deal with laws and stuff. So yeah, even with, I use it with entrepreneurship also. It's like, OK, you don't. Stay on your lane. I'm going to use that analogy before you copyright it. Yeah, that's very good. But I ask everyone, what are you most excited about? I'm most excited about the fact that I've been trying to message to the universe, and people living in that universe, but to prospective clients and also professionals who work in the match for money on the family law system, judges included, to endorse, support, recommend, mediation or collaborative divorce,

21:27which is slightly more powerful resource intensive method for more complex cases. Yeah. But New York is one of a few states that doesn't have a mandatory diversion to mediation. You must give it the college try. And if it doesn't work, come back and have a judge to cite your case. Many, many states have that diversion. And New York State, as progressive as it is as a state, has not endorsed that produce and set our mysterious to me that I'm going to keep fighting until New York makes that a practice. Yeah, sure. That's like I was also in Italy. In Italy, you have to have mandatory mediation first before it goes to the courts. But you're saying in New York, it can just go straight to the courts. No. And more and more judges are suggesting it, saying, I'm going to adjourn this case. I want the parties to go engage in mediation. I might make a lot of money. They might make a lot of money. I'm going to order. They go to the try mediation. Yeah. And if I can't be completely 100% successful in resolving everything the parties need to have to get a divorce signed

22:29by a judge, I'll say great. We solved 9 out of 10 issues that you need to address. And so now go to court and let the judge decide just one. Memorialize a partial marital separation and settlement agreement with the 9 you did solve here today. That makes perfect sense. So it streamlines what they have to fight about in a court and let a judge make a decision on every half. Well, how do people find you? So I can be found. My law firm is witsonlawfirm.com, that's w-h-i-t-s-o-n. All right. lawfirm.com. My mediation company is mediated online solutions.com. And both of those businesses are across all socials, LinkedIn, Insta, TikTok, YouTube, Facebook. All right. What am I missing? You are out there. You are doing an X. We're on X too. All right. All right. Well, thank you so much for joining us. I think the world of law and mediators and all that is just so interesting, you know? Because it's I've been getting insight into the wizard world.

23:32And honestly, like, you know, kind of once you start to know everything, oh, what about a-i, real quick? Because a-i and law is wow. OK. Yeah. So lawyers have to be really, really careful to not run a foul of ethical obligations to check case citations and our research. People have been sanctioned and disciplined for that lawyers have been sanctioned and disciplined. We have to be hyper worried about using open AI platforms with client information, right? And de Forza, I'm getting social security numbers to act as returns, bank account numbers, yeah, yeah, yeah. And numbers as a result of that. Can't just put that into an AI engine. So those are big ethical nomos for marketing and refining our intake systems and our internal policies and procedures and document drafting, as long as we don't have client specific information and document we plug it in after we have a- And what about like, you know, clients that are kind of, you know, they're entering mediation

24:33and they're just getting to know more, like, are they coming to you more knowledgeable about things because of AI is giving them a good general base? Yes, and I find that in the general base that it's often not too far off from accurate, so that's not harmful. Yeah. I would just say, I've seen people that come and they say, my fiance and I did an AI pre-nuptial agreement, will you review it? And though I would not have anybody go sign one of those things, there's very technical things in New York State that need to be in marital agreements and pre-marital agreements and post-nuptial agreements. So AI doesn't always get that part right, so they might think they have an agreement, they sign it and then when they get divorced later, 20 years later, five years later, whatever, they realize their pre-nupt is not effective. So important to have- It is a nation, yeah. Important to have a little, it's a journey side on that. It's a good foundation to go to the lawyer with, right?

25:33You can be, yeah. Depending on how complex and nuanced your situation is. Yes. If it's garden variety type stuff, you'd probably get a decent draft from AI. It's a brainstormer. Proceed with caution. I would say a brainstormer, right? And then still work with your lawyers. Yeah, it's too important. And you know another area that I really preach to people since a lot of people aren't marrying, they're just entering into long-term relationships and they're combingling things. They're buying a house together, taking a mortgage together, they're not married. And in most states, there are no rules for how to handle those non-marital assets that they both jointly own. Yeah. We have an equitable distribution law in New York. And so co-habitation agreements, if you're going to co-mingle your finances at all, so very important so that you have determined your future because you may have no access to a court to resolve those because the court can only divide things among married couples who are getting divorced.

26:33Well, thank you once again for joining us. Thanks, Jim. And yeah, I hope actually you're my second guest in the podcast and the new studios, but it's day number one. So thank you for being my first female guest and my first top lawyer guest. And it's been a pleasure to have you on the show. I love the studio. It's absolutely stunning and very welcoming. Yeah, you were over in the Barbie room, right? And then this is kind of like the whiskey room, I guess. Yeah, I guess. Yeah. But it's only day one. I will have some whiskey in here at some point maybe. Yeah, it'll definitely come back for the whiskey. All right. Thank you. Thank you for joining us. And thank you guys for joining us again. And yes, I've been talking to a lot of great lawyers. So America's top lawyer is it's a great place to learn about so many different facets of law. And yeah, thank you for joining us. And we'll hope to see you again. Cheers, everyone.