Episode 4 - Mediations

Good morning and welcome to the Deep Pockets podcast. I’m your host, Brian Abercrombie, and with me as always, co-host Nida Wood and co-host Samuel Sanchez. How are you guys doing?

I’m good. How are you?

It’s good to be back.

Nida, you’re the one that makes this thing go around and makes us all look better. So she’s like the good oil, you know, like the olive oil where you and I are, like the fried tortilla chips and maybe, like, I don’t know, I’m not even cooking oil sands.

The California certified.

Right. Exactly. I’m used motor oil. Definitely the good part of our diet. I’m definitely just use motor oil at this point. All right. So we wanted to bring this kind of podcast to you today because we want to talk about mediation and the, the the importance of mediation and kind of the benefits of mediation and shamelessly plug our, our, our new service to provide mediation to, to couples going through divorce and custody matters. But there is a lot of benefit to, to mediation and in most courts in Texas and most courts in Florida, even it is it is required. So before you have a final trial, at least at some point along the way. So obviously we’re going to talk about the benefits, you know, upside downside, you know, that kind of thing to mediation I don’t know that there’s a lot of downside. There is quite a bit of upside. There is some downside obviously, as there is with everything else. But before we do that let’s talk let’s talk current events. Let’s talk news. Let’s talk about our favorite gal Britney. Oh yes. The love of our lives. Yep. She’s back.

You know, she’s like hit me baby one more time. Hahaha. Don’t understand. He is you know dancing with knives. She’s knives.

Juggling knives. She’s a knife juggler.

Now she’s ready to switch guys again. You know, she let the kids go to Hawaii with Federline. She’s probably going to expect a whole bunch of family law litigation in the future based on her behavior. I mean, she’s just a train wreck, and we all get to watch it, like, real time. It’s just it’s sad.

So are we going to the point to stay, to say that maybe the conservatorship, maybe the people that were doing the conservatorship might have had a point? Or are we at that point yet?

I don’t think so. I mean, I think that, you know, honestly, there’s a shit ton of crazy people in this world. There’s more crazy than there is sane. And while she’s a train wreck, you know, she’s not hurting herself. She’s not hurting. Minus the knives. A little bit spooky there.

She’s the fake knives.

Yeah. The fake knives. As long as they. You know, she doesn’t do anything stupid like that again. You know, I don’t think she’s doing it in. I’m not saying it was right.

I’m just saying. Did they have a point?

You know, I don’t. I don’t know that they did. I honestly feel like she is as crazy as as normal. Crazy is, you know, Hollywood’s full of that, you know? I mean, so is she different? No. She’s got a crap ton of money and a big permanent camera set up in her room to dance around half naked. You know what’s wrong with that? And now a pole and. Well, yeah, you know, everybody needs one of those. Yeah. Get a good workout in. She’s prepping for the new tour and the book deal and everything else that’s coming her way. You know, now, the question.

Is, do you think if she toured, it would be bigger than Taylor Swift?

No way dude. The Swifties are like fricking. It’s fanatical. It’s a cult. I’ve decided that Taylor Swift is the leader of a cult and you know, so there’s no way Britney may be back in the day. She could have rival Tate, but at this point, like Taylor do like me some.

Taylor, though, I’m not gonna lie. You know, I’m willing to put that out there. She’s she’s amazing. She’s a great she’s a great she’s a great performer, great singer. Does all the stuff. Does all the stuff. Right. But is she annoys annoys me. Yes, she annoys me, but.

Yeah, she annoys me too.

But she’s, you know, I mean, it’s, you know, she’s got to, like, date them and dump them, you know, to make good songs.

She’s all right. She’s gotta have new material. So she’s gonna, uh, you know, Travis Kelsey for a while and then eviscerate.

So, you know, I’m a mahomes fan. So the last thing I want is Kelsey.

Okay, so let’s talk a Santa. Guess the this divorce is in Santa Barbara, California, which is the Kevin Costner divorce. I read somewhere, and I don’t know if it just correct me if I’m wrong, but I think he was ordered to pay somewhere in the neighborhood of like $160,000 a month and child support payments. So what are his kids doing? That’s what necessitates the 160 grand a month.

Well, I think it was his, you know, as soon to be ex-wife. She said she’d be destitute if she didn’t get a solid amount of child support. And, you know, the thing about, you know, that is a solid man. And the thing that we’ve learned, regardless of what state you are in, is that, yeah, they’re usually statutory guidelines. It’ll tell you what you got to pay, but that’s the minimum.

Are you telling me that the lifestyle that she’s grown accustomed to is. Somewhere in the neighborhood of 160 grand a month.

Well, it looks like she was asking for 161,000 a month, and he ended up paying about 63,000 a month. So. Probably a win for him, but still quite a bit. Yeah.

63,000 a month, guys. Let’s just put that in context. Like that’s that’s a whole lot of crackers. That’s a whole lot of diapers. I don’t know how old Kevin’s kids are, but I’m pretty sure they’re like pre-teen. They got know.

We had kids later in life, right?

Yeah. But like babies. And even if they were babies, like, babies eat baby food. I mean, maybe gold plated, but like, and it could be organic and granola and all that good stuff, but like, yeah, but you can’t.

Have you can’t have round the clock, round the clock. Medicare costs money. Right. Well.

You know, I heard part of the argument was security. And I do get that like obviously when you’re high profile, you have high profile kids. You want to keep them safe. Maybe it’s private schools. So, you know, those are big expenses. But that’s a that’s a that’s a hefty tag.

I think she’s also saying that the living. But that doesn’t necessarily mean you get, you know, above guideline child support. I know in Texas it’s whatever their actual needs are to get above guideline.

I don’t even know what. I don’t even know if there is a guideline in California or what that guideline would be. Just it just the numbers sound, you know, astronomical to me because I’m assuming they’re not paying house mortgage notes and things like that with the money like normal people do.

Hell, he couldn’t get her out of his house, remember? He was like his separate property house. And he’s like, you got to get out. And she was like, I’m not leaving. So.

Right, Kevin.

Crazy numbers out of California. So it’s interesting to know what their caps or whatever are, if any. Yeah.

You know, that’s why so many of those people have houses in Texas. They’re like, actually, I’m a Texan. Yeah.

My residency is in Texas, so. Yeah. Yep. So you can get me with the $5,000 a month. I’ll pay that. Yeah.

So anyway, the cap in Texas doesn’t sound so bad when you look at these California child support numbers, right?


We all have like California client two that’s like, oh my God, please let the divorce happen in Texas. Do you know what I’m saying? Like, it’s like that race to the courthouse to figure out, like, do they satisfy that jurisdiction requirements? Yeah.

All right, let’s talk mediation. So our new endeavor was a law firm is we are all three mediators. We all three can mediate complex divorce cases, divorce and custody cases combined. I don’t know how many we’ve done. Probably well over a thousand in terms of mediations. We’ve actually participated in or acted as mediator in at least over a thousand. Um, mediation is such a huge part of the family law. You know, the family law system and the family law, you know, process. Um, and just a little bit about the upside of mediation is obviously courts require it. And down here in the Harris County, Harris County, Montgomery County, Fort Bend County, all of them require mediation prior to prior to temporary orders hearing. Usually a lot of times it’s and also prior to trial. So a mediation is simply this it’s um it’s can take many forms but but basically it’s this a mediator is involved. A mediator is a neutral third party that doesn’t have a dog in the fight whatsoever. That is basically usually a family law practitioner doesn’t necessarily have to be. Um, but it’s I always found as much these mediations go much, much better when you have a family lawyer doing the mediation. So the mediator goes back and forth between the two rooms. And I’ve also found that mediation, they don’t have to take place in a different room, but for family law, mediation, most of the time, having the parties in separate rooms really helps the process move forward. Um, so basically that mediator goes back and forth and tries to bring the parties closer together with respect to getting a positive outcome. The success rates on mediation are somewhere in the neighborhood of probably in the high 80% percentile of getting a at least a case partially settled, sometimes all the way resolved.

But I think most, most of the time eight out of ten cases do resolve, you know, some at some point in the mediation process. So it’s obviously very effective. Um, it’s one of those things where you have to go with an open mind and a willingness to compromise. I’m not saying compromise every thing, but am saying that you’re not going to settle on your best case and you’re not going to settle on your worst case. Most, most fair mediations are going to end up with a resolution that you can live with, but you may not necessarily be all the way happy with, but you can live with. Um, the mediator can never be. The mediation process is confidential. The mediator can’t be called as a witness, can’t be called to testify, can’t be all the mediator can report to the court. Is that you settled or you didn’t settle. That’s it. And the mediator typically drafts the mediated settlement agreement, which is turned into a final order. And once everybody signs on the dotted line, then it is final. And there’s no take backs. No. Oh, man, I should have got this or no, man. I shouldn’t have done that. Then no 24 hour rule. You sign it, you’re bound by it. It’s done. And they’re almost impossible to overturn. There’s very limited situations in which they can be overturned, but you basically have to prove fraud on the part of the mediator, which is extremely difficult, if not impossible, to do. Did I miss anything? Yes.

Just fraud on the party. Fraud in the inducement of that contract. Did I miss think so? Man, that was a great summary. That’s exactly what it is.

But basically, having participated in as a mediator and as an attorney in mediation, I would say that it’s good to go in there prepared, obviously, and, you know, have a range of, you know, acceptable or non-acceptable outcomes that you’re willing to accept or not accept. I think these things go it’s a very taxing day. It’s usually a long day. It’s usually a full day, although sometimes these things get done in half days. Um, I would say definitely meet with your attorney ahead of time, get prepared and have a, you know, have a range of settlement of where you want to settle and you as much as you can when there’s kids involved. It’s not nearly impossible, but with, with with regard to property, I think making it an effective business decision, I guess getting it out of the emotional zone and into the reasonable settlement zone is where you want to try to get your mind set prior to going into mediation, you have much more of a likelihood of success.

Yeah. Of course, the mediator is completely neutral. They don’t have a dog in the fight, so they’re solely there to help you resolve the case. And your attorneys, you know, if you’re there with an attorney, there’s pro se mediations where parties show up without an attorney. Or if you have an attorney, then your attorney is there with you. And if you have an attorney, then your attorney should be your, um, your legal advice. A mediator is not really giving you legal advice. That’s what you look to your attorney for, to let you know if this is a good deal for you or not.

And the where a skilled family law mediator is good is they can come in the room and they can say, hey, look, I’ve tried cases in this court before or I’ve been involved with this judge before and, you know, this is how the judicial system works. And, you know, hey, if you’re asking for something outlandish, they’re going to say, hey, maybe you can get it in court, but it’s something that you’re talking about, something that’s very outlandish. So your likelihood of getting something is not it’s not high mean. It’s all about the the the evaluation of risk is really what it what it what it boils down to and is there are acceptable risks and unacceptable risks. And anytime you’re going into and nobody knows, no mediator, no lawyer, no party knows what a judge is going to do on any given day. So, um, the mediator can say, hey, I’ve been practicing for 20 years. I’ve been in front of this court a thousand times. Um, I know how this judge thinks, but they don’t know exactly what a judge would do when presented with a certain set of facts. But think. You know, if you’re playing percentages, I think a skilled mediator is going to know. You know, a lot of times what judges will do and they’ll also know what the family code allows and doesn’t allow for. So if you’re going into a mediation saying, I want 90% of the marital estate and he only gets 10%, and the reason why I want it is because, you know, I don’t like him and nobody should like him either. Well, you know, everything starts at 5050, and a radically disproportionate division of property will be 9010. And I’ve never actually seen someone get 90% of the marital estate and from a court. So, you know, that’s a completely unrealistic position to take. And I think that would be something that a mediator would say, hey, that’s an unrealistic position to take. And if you go to court, you’re likely not going to get 90%. So.

Yeah, I would agree. I mean, the other piece of, I think mediation that makes it so attractive to parties is that, you know, there’s very few limitations on what can happen in mediation. Obviously, as long as it doesn’t violate another aspect of the law, you can come up with extremely powerful and creative solutions. That will never happen in a courtroom. And that’s really the advantage and why I think so many lawyers and really even pro se parties are attracted to that process because one, you can get a lot of concessions, you can do very creative possession schedules, you can do, you know, adjustments in, you know, expense structure or the way you divide up property can be extremely creative. That would never, ever, in a million years happen in a courtroom because judges just don’t have the time. I mean, they you know, when you get to court and you get to trial, really the thing that you’re looking at is, you know, a very Solomon esque resolution, which is show me what you got, and I’m just going to get to the cleanest way that I can divide it. And a lot of times that may be 5050, depending on what the facts are. And who’s behaving and all those good things that we all know. But in mediation, that’s not the case. In mediation, you can propose all kinds of very, you know, extremely creative things. As an example, let’s say, you know, you come in and you’re like, I want to I need a very specific possession schedule.

Well, in Texas, as we all know, there’s a standard possession schedule, right. So like that’s very formulaic. It doesn’t apply to everybody’s lives. It doesn’t apply to most people’s lives. They actually end up like conforming their lives to that order. But in mediation you could come up with something that’s so creative, so well crafted that it fits your life perfectly. So nobody even has to look at the order. It’s that good. So, you know, that’s the kind of thing that I think most people are really they don’t know what mediation is. And so now that we’ve explained what it is, you know, what it can do for you. That’s really the piece of it that I hope everybody gets out of this podcast is that when you go to mediation, it’s the only time in any litigation process that I truly believe clients are in control. It’s the one time that your creativity and your life is going to matter 100% to how that resolution comes about. And so if you have counsel, they can be extremely creative and useful in relation to, you know, applying their expertise to getting you a good, solid order out of that process. And if you’re pro, say it gives you the opportunity to really have somebody who knows something that you don’t, which is the law, and kind of apply it to the facts on both sides so that you can come to a resolution that’s going to be something that you can. It should be with the law.

And I think that’s particularly helpful with like pilots and nurses and doctors and those kinds of people that have those kinds of non-standard, I guess, 9 to 5 jobs that need a more creative possession schedule, a standard, you know, first, third and fifth weekends are not going to work for them, or even maybe like a play off of that, which is what the court’s going to be likely to order, may not work for them either. So something very creative, and we’ve done many of those before for all different kinds of jobs. And I think we, you know, propose different things as well, things that we’ve seen work for other people. And those job lines.

I think, need to and have practiced in the courts down here. And now you can go down and present your case as to why you don’t think the standard possession order should apply to your situation. And judges do have some discretion to to go outside of the standard possession order. And what I’m talking about when I talk about a standard possession order is the first, third and fifth weekend. It’s kind of the every other weekend, you know, time in the summer, Thursday nights, that sort of thing that the non-custodial parent would get. So what I would tell you is that the state legislature laid out that standard possession order. I don’t know, Sam, how many years ago, 25, 30 years ago, a long time ago. Long time ago. Yeah. It’s been it’s been around for a long, long time. Yeah. Right. So the judges know that, hey, if I stay within this standard possession order, I’m not going to get turned over on appeal. Nobody’s going to be able to to say anything about whether I ruled in the best interest of the child or not, you know, really, because the the standard possession order is presumed to be in the best interest of the child. So they they don’t they don’t necessarily think about, hey, what do you do for a living? What’s your schedule like? Okay, the legislature says do first, third and fifth weekend.

So you didn’t win custody. You get first, third and fifth weekend. So I had a client one time that was a pilot and the opposing party was an EMT. And you want to talk about schedules that aren’t 9 to 5. Neither one of them had a 9 to 5 schedule. So we actually had to sit down, me and the other attorney and a mediator and and craft out a schedule that worked for because the pilot schedule was changing every month. The schedule was changing every month. So we had to come up with a schedule that both both parents got, you know, ample time to see the children, you know, during their, their respective off times and, and with the, with the radically changing schedule that changed every month. So that’s the that’s the benefit of mediation. It allows you to come to very creative solutions when there’s, you know, there’s there’s things that just don’t fall in the cookie cutter, you know, and cookie cutter land, which most people don’t live their life in cookie cutter land. So yeah.

No, you’re absolutely right. Not only that, like international issues. Right. Like, you know, look at the Jonah’s divorce that’s happening. Same thing. You have parties that are going to be living in different countries. You know, a standard possession schedule is never going to work that way. And then you also have like these high asset families that are looking at it going like, well, my my kid is in boarding school. So like, what do we do about that. So like military families or. Yeah. So like hey, you know what? I’m on the deployment. Like I need to work there. So it just it gives you much flexibility. But on top of that. So like not to exclude or just focus on the children. But I would tell you like the other piece of mediation that I truly feel like is so beneficial to people is when you go to divide up your estate, right, how we handle your estate, like whether it’s because, you know, a lot of times when you look at, let’s say you go, you’re going to go to trial. A lot of times it’s like, show me what you got and let’s just divide it up. Period is just what I’m going to do. You get this, you get that. But that doesn’t really take into account like complex you know estates.

So so whether you have like, you know, deferred compensation that’s coming in, whether you have, you know, stock packages and, you know, somebody could come in and say like business ownership interest. Yeah. Hey, you know what? I have a business. I don’t want to share it with my wife. Wife is like, I don’t want anything to do with it. But the same thing is I need, you know, assets from that. But it’s a new business. You don’t know what it’s going to turn into. It could become freaking. You know Apple who knows. And it’s not stock based. So in mediation kinds of things that will preserve value, that will minimize taxes, that will allow you to transfer wealth between parties in the best way possible and in a way that that they both find acceptable, rather than when you go to a court, as much as, you know, when you get sideways and you end up in trial, it’s out of your hands, right? You go to the judge and the judge is a person in a robe, but they’ve got a thousand people in line behind you waiting for their time. And so while they’re going to listen to what you want, does that mean they’re going to do it? They’re going to kind of listen to it and take whatever they have based on their own opinion and the testimony that they heard, and they’re going to divide it up.

We’re in mediation. You have more control. You have the ability to go in and craft something that’s unique, that fits your life, that fits the other parties, life, that fits the estate, that fits the assets that are within the estate. You know, if you’re talking about fine art, if you’re talking about coin collections, if you’re talking about, you know, paying back separate property estates, because, you know, we all live as a couple, right? So if you’re like, hey, I use my inheritance to pay down all this other stuff, like what happened to my inheritance? How do I get that back? The other party doesn’t have it right then. So there’s just a hundred different. More than that, obviously, but just so many things that can affect how an estate should be divided that doesn’t really ever get a chance to happen at trial, but in mediation, it absolutely can. So that’s something that people should really consider as they contemplate this mediation. Right. For me? Well, it absolutely is. If what you want at the end of the process is some a better product than you would get if you go to trial.

That’s a great point because because one thing would also tell you is, is cost and time associated with the trial. Now there’s an emotional cost to that we can speak to in a little bit. But let’s talk about financial cost. Normally if you go to trial, it’s going to cost you probably twice as much as what it costs you to settle the case in mediation. So you’re looking at probably doubling the expense of what the ultimate case is going to cost. I would think sometimes it’s more than that, sometimes it’s a little bit less. But on average, I’d say it’s probably about double what you, what you, what you would spend. If you settle it in mediation, the next thing would be the time that the court has. I mean, Sam brought up a great point. There’s a thousand people in line behind you. So if you’re going to court and you expect that you’re going to get a two week long trial and it’s going to look like a Law and Order episode or an episode of suits where you got, you know, the judge has all the time in the world to hear you and all that. No, you’re going to go into court. You’re going to sit there for a while and wait while they handle other preliminary stuff on the docket that other cases, other proof ups, other things, then they’re going to get to you about 10 or 11:00 in the morning. And then if you need three days, you’re going to get one. If you need a week, you’re going to get three days. If you need two weeks, you’re going to get a week.

If you need one day, you’re going to get four hours. And that’s that’s how the trial is going to go. And then you’re going to have to cram all the information you need to get out in that limited space of time, and then you’re relying on a human being that doesn’t know you, doesn’t know your kids, doesn’t know your property, doesn’t know your business, doesn’t know anything. Making a decision that’s going to impact your life more so than you know, any anybody who’s in the white House or anybody who’s in Congress or whatever, this elected official is going to make a decision on your life that is going to impact you for years down the road. And, you know, if that all sounds appealing, then by all means, go to trial. Um, you know, some some cases do have to be tried. Don’t get me wrong. There’s some sometimes there. But normally the rule of thumb is that if cases don’t resolve usually in mediation, usually it’s because there’s somebody that’s absolutely, completely unreasonable. Sometimes it’s the lawyers and sometimes it’s the parties. So um, so if cases are tried that’s that’s typically what happens. But usually if there’s a, there’s a completely unreasonable piece somewhere in the in the process the case will not settle at mediation. But. Where there’s a will, there’s a way, there’s. There’s. If people are willing to keep an open mind about it, it can settle. And the success rates are very, very high. So cost and then okay, emotional costs. And then you want to speak to emotional cost when you go to trial.

Yeah I mean especially when there’s kids involved I mean you’re especially if it’s a custody case too, like at trial you’re just mudslinging back and forth. There’s dad saying bad things about mom and vice versa because you guys are fighting over custody. And then there goes co-parenting out the window for at least a few years, because you guys have said such terrible things in an open courtroom about one another, um, that, you know, maybe the other person wasn’t even thinking that you thought that about them. But now it comes up at trial and just it’s terrible. And then in addition to what you said, Brian, as far as the dockets and Sam as well. You’re set for trial one day. You may not even be going that day. I mean, every county is running differently. Their dockets are different. Some counties are bigger than others. Some judges are more backed up than others. Um, dockets just run differently in different counties. Some counties, they won’t even set your case for a trial. Your case can be sitting for years down the road. Um, just spending money, being stuck in litigation and not getting any resolution, whereas mediation can give you that resolution. Other counties are so big that you’re set for trial. You’re all ready to go for trial.

You’ve prepped for trial. You’ve spent, you know, at least 10,000. Case is not going for another few months, and then you show up at the second trial date. You get pushed out again. So it’s just kind of a waiting game, which can add to that emotional stress and emotional emotional turmoil because you’re looking for resolution and you’re just not getting it, which can be very stressful. And then on top of that, you’re just spending more money. Other counties are a little more efficient, but like you said, you ask for two days, you’re going to get a day, and they’re not even going to get started right away just because they do have other cases to get to in the mornings before you can get started. So even if you get a day, it’s it’s not going to be a day, it’s going to be much less than a day. And they’re going to likely be done around 5:00 that day. So you have to not everything like your life story, the judge is a fragment of that. They’re not going to hear everything. So you’re going to have to pick and choose what parts the court’s going to hear, and then make this decision that’s going to be affecting you for months or years down the road.

What did that judge in Fort Worth used to tell us all the time? When she called the clients down in front of her and have a little chat, have a little chewing session on him, she’d say, I’m never going to take your kids to school. I’m never going to tuck them in at night. But hey, if you want me to make a decision on their life and where they want to live, then I’ll go. I’ll make the decision. But just understand that I’m never going to meet them. I’m never going to. You’re never going to tuck them in at night. I’m never going to take them to school. I’m never going to take them to their activities and don’t know much about them. I’m never going to take them to the doctor so well.

And the other piece of mediation that I guess I would just stress to everybody is that trial. Trial is very structured. Right? So, you know, it’s bound by these rules of evidence, what you can get in, what the judge can hear, who gets to talk, you know, and those are very strict, very structured, very complicated. And so the stories that you want to tell, I would say probably nine times out of ten, you don’t get to tell all the story. You don’t it doesn’t get in. But in mediation and same thing with evidence, right. Like a lot of complex evidence, you can’t get in because you can’t verify it. You don’t like in this digital age, you’re like, hey, prove that that’s a valid document, or show me that there’s a, you know, a business records affidavit on file. Or the custodian of Records has appeared to testify that this the to the authenticity of this record. You can’t get all that stuff. You can’t get it in. And so then all of a sudden you’re looking at it going like you’re looking at your lawyer going like, well, what the hell? Like I needed that to get in, because that’s the crux of the story. You know, I needed the judge to understand my perspective on the kids. I needed to be able to tell him what my aunt said about my cousin that was there, that saw this frickin fistfight with my wife. You know, like that.

All that stuff doesn’t get in. But in mediation with the mediator, you have the opportunity to tell a full story. You have an opportunity to express yourself to somebody who’s neutral, much like the judge should be neutral, right? Somebody who can listen to it maybe doesn’t get to make the decision for you, but absolutely can use that information in the other room if you allow them to, because obviously they’re bound by confidentiality, meaning that you can tell them something that they can’t share in the other room. But just even having that knowledge helps a mediator in the other room touch on that. So let me give you an example. So as a mediator, someone in one room says, hey, look, you know, I’m about to get this bonus. And, you know, I really would like to be able to get that off because I need to use it to pay down some extreme debt. But the other person doesn’t know that I’m going to qualify for this because it it’s not for sure, but it’s highly likely. So I don’t want you to share it in the other room, but I might be willing to take that debt to get this deal because I know I would be able to pay it off. But in exchange for that, I really need, because I know she doesn’t want to carry the debt. I really need time with my kids. I really need to have equal time.

So as a mediator, I get to say, okay, well, I’m not going to share that information because you told me I couldn’t, but I know it. So in the other room, when I’m having conversations with that individual and she’s like, I do not want to take any of this debt. He incurred that debt as part of his business. But, you know, I don’t want to give him any more time. I’m the primary parent. I’m the mom. That insight, that knowledge, that ability to help, you know, talk to the other person about, well, look, you know, maybe you give time to make him take that debt, knowing full well that in the other room, I already have somebody who’s expressed to me the the possibility of taking that debt. And that’s what a mediator does, right? A mediator plays both sides, gets to know all that information to help you reach a deal where nine times out of ten, you’re not going to share that information. You’re not going to get that full story potentially in court. You’re just going to tell the judge, this is what I want. The other side is going to say, this is what I want. And the judge gets to decide between those two things based on what possibly can come in. And that’s the difference between mediation, in my opinion, is like that’s a getting to tell a full story, getting to share your expressive point.

That’s a great point about mediation, the confidentiality of the process. So for everybody that doesn’t doesn’t know the mediator is not allowed to share information from one room to the next lesson unless there’s an agreement to do it, or the mediator is authorized to share that information. So you can tell the mediator, hey, this is what we’re looking to prove in court, and this is what we’re looking to to do in court. And the media is not going to run across the hall and say, well, you know what they’re going to do to you if you go to court, they’re going to do this, this and this. Um, no, the mediator is there to take in the information, you know, give an assessment and then go in the other room and, and discuss it with them, and then they share their information and make an assessment and had recently had a mediation with a former judge. And there was a complex property, you know, division, we’re trying to value a business that the judge heard both sides of it and, and comes in and says, look, look, guys, the judge is going to throw law books at you from the from the bench. You guys are not going to get ready for trial without having some sort of an expert come in here and do this. And he was right. I mean, it was it was a situation where it was a complex deal and nobody had an accurate valuation of what this business was worth, and it was going to take some time to get. And the judge wasn’t going to want to hear that. So, um, but this mediator, who was a former judge, took in the information that both sides were presenting and said, hey, look, both of you got some, got some, got some issues that you got to, you got to you got to deal with.

So that’s, that’s the benefit of a mediation, the, the confidentiality of the process and the confidentiality of the mediator. The good mediators are not going to share information without permission, and they’re not going to share information that’s going to put you in a in a bad light. And the other thing I would tell you about mediation is you get to that resolution and everybody signs the statistics are you’re less likely to go back to court for a modification with a mediated settlement agreement than you are with a trial decision coming from a judge because of that emotional cost that Linda was talking about. If you get if you go to court and you feel like you lost because the judge ruled against you and ruled for your ex, for your spouse or whatever, for your ex spouse, then you’re going to be more likely to want to go back to court as quickly as you possibly could, because you want to tell that judge how awful this person is and and get your one up, that one up and, you know, and flip the script. Right. Um, it’s human nature. It’s, you know, unfortunately, that it happens quite a bit with the mediated settlement. Both people have a stake in how that was negotiated and how it was how the agreement was arrived at. And both both parties typically can take something good from the agreement, and they’re less likely to want to overturn that, because if you go down there for a modification, especially on child issues, it could open Pandora’s box on everything in the order it could be modified. So even the parts that you like.

And just to add to the confidentiality, I think you already said it, Brian, but the mediator can’t be called to testify in court. They can’t be subpoenaed to talk about what actually happened in mediation because it is a confidential process. So anything that you want to share during mediation, it stays in the two rooms in mediation. Whereas if you’re in trial, it’s an open courtroom. So anyone can log into zoom and view everything that’s being said, come into the in-person trial, see anything that’s being said, which, you know, it can be a little bit embarrassing depending on what’s being said about your personal life.

The other thing I would tell you is there’s a lot of horse trading that goes on in divorce cases. So obviously judges are never going to put kidatu. They’re going to separate kid issues and property issues. How many times have you guys been through mediations where, you know, hey, give me a little bit more retirement over here and you can have more time with the kids over there. And how often? I’m not saying that. I’m not talking about the morality of it, but how often is that traded.

Very frequently.

Or child support for time? Or, you know, it’s I’m not like I said, I’m not talking about the morality of it. I’m talking about the logistics of it. It does happen. It does get traded all the time.

Oh, absolutely. Without a doubt. I mean, crafting those kinds of solutions, you know, every, every, every family is different. Every situation is different. Everybody’s needs are different. Everybody’s desires are different. Very unique. It’s very unique to every family. It’s very unique to every individual. It’s very unique to every factual situation. And you get to express more of those. You get to deal with more of those directly through a mediated settlement agreement than I feel you’ll ever be able to do at trial. It’s not to say that it’s the solution to everything, because there are plenty of cases that don’t settle mediation, but I promise you, even going to mediation, you clarify the issues that you get down to brass tacks at mediation, you figure it out. So even if you don’t settle at mediation, which is rare, but if you don’t, you know the exact issues that remain that you’re going to go forward if you have to go forward to trial, if you reach an informal settlement agreement after, if you have to return to mediation, it’s just a process that helps filter out all the noise that can exist in a case and really get you closer to the point of resolution, no matter what that resolution is.

So not to put you on the spot, but I’m gonna put you on the spot kind of. What is your if someone goes into mediation with you, kind of what is, you know, as a mediator, what is your style? What is the, you know, kind of what, what what kind of approach do you take when you’re dealing with?

She’s a Texas she.

So I think all of us, we’re all like, non-judgmental. We’re we’re neutral. Um, we don’t pose judgment on either side. Everyone’s different. Everyone’s story is different. Everyone’s needs are different. So normally what we’ll do is we’ll if possible, we’ll have the attorneys. If there are attorneys on both sides, send a position for what they want at a mediation with their client’s goals are for mediation, so that I can take a look in advance and see what’s going on. Normally I’ll look at the at the pleadings on file as well, even if the attorneys don’t send it to me just to kind of see what the case is about and what the issues seem to be. And then I’ll introduce myself to both sides just to let them know that I’m there. I’m the mediator, I’m neutral. I’m not posing judgment. Just go over all the mediation rules that we talked about earlier and what mediation is all about, especially if they haven’t been before. Um, we normally sign like a mediation agreement that everyone’s agreeing to be at mediation. Um, it’s a voluntary process. May not be voluntary, as in, like you’re coming, but the court’s making you but voluntarily, and we’re participating in mediation.

And if we agree to mediation, it’s going to be a voluntarily signing the mediated settlement agreement. And so normally I’ll start with the petitioner. So the person that filed the suit, whether it’s a divorce or a modification or whatever kind of case it is, enforcement. See what their goals are. See what their what what they’re wanting out of the case. Um, kind of get the background and then go into the other room and talk about the same thing with them, what their goals are, what they’re looking at, and then just, you know, issue spotting and going back and forth and seeing if we can just reach a resolution. Um, and if so, then just put together a mediated settlement agreement, like you said, that’s binding. Both sides get to review it, make sure they’re okay with the language. Um, and then usually there’s some back and forth on the language just because if there’s attorneys involved, they want specific, enforceable language that we want to include in the mediated settlement agreement. And then no buyer’s remorse after everyone signs it. So that’s it. Yeah.

I mean, honestly, I’m the same way I approach it basically, basically about the same way I do let them give. Sometimes they need to get a few things off their chest. So that’s what that kind of preliminary, you know, goals and positions kind of, um, you know, discussions about. So you want you want people to talk and be able to you want to understand where they’re coming from. And you want to you want to empathize with with their position. So you do want to hear what they have to say and, and the reasons why. And and why they’re why they’re adamant about a certain position and why the things are important to them so that, you know, so that I can understand what’s most important in this room and what’s most important in this room, so that, you know, can help them come to a resolution because, like I said, mean that oftentimes you’re getting a divorce or you’re having a custody case because there was a dispute. And there’s and certain things are more important to other people than, than than others. So you want to let people. You know, I don’t want to say vent, but they have to be able to tell their side of the story. And you have to understand, you know, what’s going on. I mean, you want to cut to the chase as much as you possibly can, but people do need just therapeutically.

I think they need that time to to kind of tell you how they feel about things and how they feel that that’s because you may be the only person that they talk to, you know, during this process that that really is neutral and isn’t going to tell them what they want to hear and is going to is is going to listen to them and listen without judgment. And so I definitely think that’s an important thing as part of this process goes along. And then you start, you know, you start helping people kind of narrow the issues down and try to get people into the zone of settlement as opposed to, you know, just emotional and, and, and all of those kinds of things. Because you do have to approach this level Headedly and you definitely want to try to get as much information about the case as possible before, before you mediate. But have I gone into a mediation cold and not knowing anything? Yes. And so it does take me, you know, 30 to 45 minutes more, I think getting the gist of what’s going on, what the issues are and stuff like that, talking to the lawyers and the parties. And you know, obviously I’m, I’m, you know, very pro lawyer in these mediations.

So in terms of, you know, what I mean by that is, you know, I tell the clients you need to listen to your lawyer. You need to defer to your lawyer on matters of legal, you know, matters of law, matters of legal decision making. That’s your advocate. That’s your person that you hired. I’m going to give you my objective opinion, but, you know, it’s not to take the place of your lawyer’s opinion. And, you know, most lawyers do a fantastic job and they work really hard in mediation. And I would say that, you know, I think it’s harder for lawyers to work and work in mediation and try to get a case settled than it is sometimes to go to trial because you just go to trial, you put on your evidence, bring your witnesses there, and the judge makes the decision and you have to live with it. But mediation is more creative and you have to think, you have to come up with a with a solution that that may work for everybody. And you have to put on sometimes it requires a creative solution. So like I said, I definitely respect lawyers who come to mediation, who come to mediate with me and, um, definitely respect the people and want to hear what they have to say.

Yeah, I agree, I think it’s definitely a cathartic process. You know, we tell people that all the time is you’re going to go through this, you know, you’re going to have to deal with a lot of issues. I do the only and I, I wholeheartedly agree with all the things that you have said. I think that both of you guys, we have very similar styles. Um, I do ask that, you know, lawyers and even pro se parties that they really come with a mindset of a, you know, like if it’s a full day mediation, you know, we’re starting at eight. I want their 10:00 offer first. Um, or if it’s a half day, you know, I really want them to start, like, you know, with their 2:00 offer, knowing that 2:00 offer. Because, you know, the challenge, I think a lot of times we’re we’re people will make a mistake is, you know, that leads to a. A less than satisfactory result in mediation. Meaning you don’t settle, is that they come in with this notion that we’re just going to inch, you know. Oh, they gave one point. Let me give one point. You know, like this little inching towards the middle. You can’t they just can’t do that. I mean, it’s still a finite time process. And you really have to come with the right mentality and think that falls squarely. A lot of times on the attorneys and as a mediator, I think that’s one of the things that I really try to encourage with the attorneys and pro se parties is to tell them, look, this is the one time in this entire process you’re going to get to control anything.

Honestly, other than that, you don’t get to control shit. The court’s going to control it. The other attorneys are going to control the rules of evidence, is going to control the rules of civil procedures, are going to control, but not you. In this process, you get to control. And the best way to do that is have the right mind frame, right, to really sit down and think through what are the issues, what’s most important to me before you show up in that room, and to come with the right mindset, which means you come with that 10:00 offer in mind. It doesn’t mean that that’s where you’re getting up. That’s not the end all be all. That’s not the finish line. That’s just where do I really want to start? That tells the other side that I’m serious, and the other side should have the same philosophy and mentality when they come into that process. And if both parties come with that, lawyers know lawyers. The likelihood of you getting a positive result is much higher. So that’d be the only thing that I would add to that. I really try to encourage people who come to mediate with me that that’s really what I want. I want you to be thinking about that. I want you to have it clear in your mind. I want us to start the conversation there. You can tell me all the background that you want to, but when it comes to the offer that you’re going to make or the first part of the conversation that we’re going to exchange, I want it to be an advanced offer. I don’t want us to go backwards in time.

Yeah, you don’t want to, you know, you don’t want to make a it’s not a art of the deal thing where you ask for something outlandish and then you you try to settle on something reasonable later on in the day. It’s a situation where, look, you’re only going to piss off and set back the process. If you if you ask for something absolutely outlandish that you know you can never get from a court. So yeah, trying to get the lawyers and to narrow all of that down at the beginning is obviously crucial to getting a successful resolution.

If you’re working backwards.

Yep, you’re working backwards. You’re just it’s hard to get a resolution because then you’re just, like Brian said, pissing off the other side. And then they don’t want to settle just because they’re frustrated. At that point.

You get their outlandish offer from the opposite side, and then you have to work twice as hard to get them back to to, you know, because if they if you do an outlandish offer, they’re going to give you an outlandish offer and then then you’re getting nowhere. So, you know, but that’s where a skilled mediator comes in and says, look, look, dude, we’re not going to do that. We’re not going that road. We’re going to give me something realistic and we’ll go in there and talk, and we’re not going to, you know, we’re not going to play those kind of games. So, you know, the media, the good mediators are going to be able to control the room, feel like that. That’s that’s things that we can do and that’s things that we can help help people resolve their resolve their disputes. Because at the end of the day, people want these things over with and they want them resolved. So Sam and Nina, how do we how do they get in contact with us if they want to schedule a mediation so we can do like I said, we can do pro se mediations for people who don’t have attorneys. We can do mediations for. Obviously for attorneys, we do. We like we don’t, we don’t discriminate. We’ll be happy to do to help anyone out who needs help. So, um, you know, obviously we can we can certainly talk about your situation and, and see if it’s a right. It’s a good fit for you. So how do they get in contact with us?

But sure, go ahead.

Oh, so they can obviously reach out to the main line. That’s (888) 981-7509. They can email either one of us minds and would. At law office.com. My direct line is (832) 458-1502. Same here.

If you’re up in the metroplex area or you’re wanting Florida mediations, it’s Sanchez at law office.com. Obviously the main website, the number that I gave you. You can also reach us at the main number (469) 844-7181.

And I’m be Abercrombie at law office.com. Obviously anytime you go on the website there’s a way to get in contact with us. W-w-w dot com. Um, pretty easy websites. Pretty easy. Pretty user friendly. Phone numbers are always good. We’re happy to help. So we can certainly help you out if you are are looking to resolve your dispute that way. And like I said, we can work fast and we can. We can get you on the schedule quickly and try to get your case resolved as quickly as as we can possibly work. So thank you guys for the time this morning. And happy mediating. Go, Rangers. All right. Have a great day.

Thanks, guys.

You guys take care.

Thanks for listening to the Deep Pockets podcast, brought to you by Abercrombie Sanchez and Wood. You can find us at law office.com, slide into our DMs or go old school and give us a ring at (888) 981-7509. This podcast is for informational purposes only and all views are the opinions of the hosts. It’s not designed to provide legal advice for your particular legal manner and should not replace the advice of competent counsel. So tune in next time because with over 40 plus years combined experience, these dockets go deep.


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