Melinda Eitzen | An Inside Look at Divorce The Collaborative Way

Today, we’re excited to welcome Melinda Eitzen to the Texas Family Law Insiders podcast. Melinda is a partner at Duffee + Eitzen. 

The daughter of a retired Judge, Melinda is in her 27th year of practicing family law. She is a licensed mediator and has spent twenty years practicing collaborative law. She’s co-authored two books: “Divorce The Collaborative Way. Is It The Way For You?” and “Considering Divorce? Critical Things You Need to Know.”

Melinda says she was attracted to collaborative law because “it allows the participants, the husband and wife, to be their higher selves, their best selves…it’s creative and it’s forward looking.” Listen as Melinda gives us an inside look at the practice of collaborative law, including:

  • What types of people make the best candidates for a collaborative divorce 
  • What to do when there is an imbalance of power between the parties in a case
  • Who are ‘the neutrals’ in a collaborative case and what are their roles
  • How to become a Credentialed Collaborative Professional
  • And much more

Mentioned in this episode:


Melinda Eitzen: When I mediate, I really spend time talking to each of the parties about why is that important to you? And when the other person can understand the why behind it, they’re much more likely to agree to it.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today we’re very excited to welcome Melinda Eitzen to the Texas Family Law Insiders podcast. Melinda is a founding partner of the Dallas Fort Worth area based family law firm of Duffee and Eitzen. Melinda has been recognized by D Magazine as one of the best lawyers in Dallas and one of the best family law mediators in Dallas, by best lawyers in America in the areas of family law and collaborative law, and she’s the name to Texas super lawyer numerous times. Melinda’s practice focuses on multimillion dollar divorces, custody modifications, paternity cases, and premarital agreements. She’s also been at the forefront of the collaborative law movement in Texas. She’s written two books on the subject, Divorce the Collaborative Way, Is It the Way For You and Considering Divorce, Critical Things You Need to Know. Melinda is also an experienced family law mediator. Thank you so much for joining us today.

Melinda: Thank you for having me, Holly. I’m glad to be here.

Holly: So why don’t you start out by telling us a little bit about your background.

Melinda: So I grew up in Dallas, I’m a Dallas girl. My father, Merrill Hartman was a lawyer in Dallas and then a judge. He was a family court judge and then a civil district judge, and he was on the bench for 22 years in Dallas. So I kind of grew up around the law. I knew I wanted to be a lawyer since about third grade. And I have an undergraduate degree in journalism from TCU. And then my law degree’s from the University of Houston.

Holly: So why don’t you tell us a little bit about your current practice.

Melinda: I have a law firm with Lisa Duffee. And we have 10 lawyers that work at our firm and we all do family law. My personal practice is composed of four components, I would say. I’m in my 27th year of litigating. So I still have a strong litigation practice, meaning going into court. I’ve been doing collaborative for 20 years. And I love collaborative practice, I think it’s the way to go when people will do it. And so that’s a component. And then I mediate as the mediator for other people’s cases. And that’s about 20% of my practice. Then the last piece is I do a little bit of teaching and training, not only in Texas, but around the country. Mainly in the area of collaborative. I train other professionals, lawyers, mental health professionals, financial professionals how to do the collaborative work.

Holly: So that’s interesting. You’ve been doing collaborative work for 20 years, because I didn’t realize that it had really been around that long, it seemed like more of a new phenomenon with gaining steam recently, a lot people becoming more involved with it. Has it become more popular recently? Or has I just wasn’t aware of it?

Melinda: I think you just weren’t paying attention. No, when it came to Texas, literally when it came to Texas, 20 years ago, I was in the very first training. And I walked across the room and said to another lawyer that I had a case with, we could do this case collaboratively. So I think I had the first case in Dallas, who knows if that’s true, but it was definitely one of the first if it wasn’t the first. So I’ve been doing it a long time. And I think that it has ebbed and flowed a little bit in the community, as far as lawyers doing it or having interest in doing it. But I’ve had a steady amount of collaborative work for 20 years.

Holly: So what drew you to collaborative law?

Melinda: What’s so attractive and when I was sitting in that first training and kind of went, aha, is collaborative allows the participants, meaning, let’s say in a divorce act, and the husband and wife to be their higher selves, their best selves. It is very focused on creative solutions of how to resolve their case. And it’s forward looking, meaning, hey, we have these kids together, how are we going to parent them in the future? Whereas litigation is more mudslinging. And it’s a little bit more backward looking. So I think collaborative is a better process for people if they’ll choose to do it.

Holly: What types of people do you think make the best candidates to go through the collaborative process? And what can attorneys be looking for to suggest it to potential clients?

Melinda: That’s a great question. And there’s a little you you can ask, you know, several people in the collaborative community this question and you might get different answers. I err on the side of most cases are appropriate for collaborative. But there’s definitely people in the community who would say, whoa, whoa, whoa. They do have to have a certain level of executive function. And what I mean by that is they have to be able to reason and think and analyze and make the decisions.

And if they’re just not capable of doing that, either because of an ongoing mental health problem, or just because of the state of their emotion right now, then it’s hard for them to be successful, because in collaborative, the decision makers are the litigants, the husband and the wife, in our example. In litigation, if you can’t make a decision, that’s okay. Because the judge will make it for you. So to me, that’s the biggest roadblock is if you just have someone who’s crazy, whether it’s, you know, actually crazy or just divorce crazy, they have trouble.

Holly: So do you in your practice, find yourself implementing a lot of the collaborative techniques, in litigation or in mediation, when you’re mediating for other parties?

Melinda: I think you use them in all areas of your life. So as an example, when I was raising my children who are now grown, one of the things we learn in collaborative is option development and how to solve a problem. And when my kids would have a bicker, usually about who got to use the video game, because they had limited gaming time allowed in our household. They would have a fight, I would say, okay, we’re coming to the kitchen table. Okay, Matthew, what’s an option to solve this, and Maxwell, what’s an they would have to tell options back and forth, and then analyze the options and come to a resolution, which is the model of collaborative.

And they reached a point where they’d just be like, oh, my gosh, I don’t have time for all that. He can have the video game. But I do think it applies in everything. Definitely in litigation, definitely in mediation. And part of it is, it’s just having good communication skills, which serves you in all arenas, right? If we’re in litigation, we need to be able to communicate effectively to the judge, or if we’re in a mediation, we need to be able to communicate effectively in order to get our point across. As the mediator for me to be able to explain people’s positions, their interests, so that everybody can get closer to resolution.

Holly: So I haven’t done a whole lot of collaborative law, but I did do the collaborative law training CLE that we they had to move to a webinar a couple of months ago. And I certainly find the tactics from the collaborative process to be very helpful and use them a lot in the litigation context. Now in terms of getting people working with mental health professionals, getting those mental health professionals to help us avoid going to court. And I, you know, I certainly love the concepts and definitely think that it can lead to a better outcome, whether it’s full collaborative, or just the pieces are used in the litigation process.

Melinda: Agreed, agreed.

Holly: But back to talking about collaborative law, what do you think makes a particular client a good fit for the collaborative process?

Melinda: So besides the executive function that we talked about, I think the other areas that the statute requires us to look at is, has there been domestic violence. You’re required to screen for that. And it doesn’t mean it’s an eliminator, you could still take them into the collaborative process. But you would need to make sure you have proper safeguards in place just like in mediation. We need to have proper safeguards so that we don’t further traumatize somebody who has already been abused. And you have to think about how to how do you make up for the imbalance of power? And even in cases where there isn’t abuse, if they do have a dynamic in their marriage, or in their relationship where there’s been an imbalance of power, how can you equalize that in the process? And there’s ways to do that. You just need to be mindful about it.

Holly: What are some ways that you can equalize the process? Because I know in especially in divorces, we see maybe you have a stay at home mom and the husband has control over the money and there’s definitely been control and imbalance of power. How can, what are some ways you can deal with that?

Melinda: Uh, one thing to think about is, if I have what I would call the collapsing client, that’s my term of art. Meaning they from what they’re telling me their habit or their pattern with their spouse or their significant other is that they always give in the other person’s maybe a bully, maybe not a bully, but the pattern has resulted in my client being the collapsing client, then I need to do things to assure they’re not going to collapse. Instead, they’re going to make good decisions for themselves in the process. Typically in collaborative, we’re all in the same room, or during COVID, we’re all on the same zoom, where we can all see each other. But it’s not required. That’s not a requirement of the statute. We can meet in any way that makes sense best sense for them. So if we needed to caucus, the whole case, we could.

Meaning my client, and I could be in one room, and the other client and the other lawyer could be in the other room. And then the neutrals, which in collaborative, I know, you know, are the neutral mental health professional and the neutral financial professional, they could go back and forth. Maybe even the full team, meaning the two neutrals, and the two lawyers could go back and forth from room to room. To just protect that person from that dynamic. If it’s been abused, or if it’s been bullying, or it’s not even the other person’s a bad person, their dynamic is just that my client always collapses. Now, maybe we don’t need to do that. Maybe instead, I just need to tell everyone, my client’s never making a decision, a decision live in the room. So she’s going to hear the information, she’s going to give information or he, but then we’re going to go caucus, my client and I and we’ll get back to you about the decision. To just protect my client from that habit of collapsing.

Holly: So if you do that, and you’ve got to take a break to confer with your client, do you tend to make that decision right then? Or is it we’re gonna sleep on this? Or we’re gonna come back next week with a decision?

Melinda: Yeah, well, I think that’s one of the benefits of collaborative is you’re never expected to make a decision, right then live if you don’t want to, or to go confer, come back and make one. So I think it would really depend on the client’s comfort level and my comfort level with their decision. If we were going to make it after we stepped in another room, would my client then say, yes, we’re going to make the decision now. Or, like you said, do we need to sleep on it? Do we need to gather more information? Do we need to wait until the next meeting. And typically in collaborative, we just meet for two hours at a time. So it’s a limited time people get tired. So limited timeframe. And we might have a meeting every week or every two weeks. So they could have time between to counsel with me or anyone else they need to counsel with and reflect upon their decision.

Holly: Meeting for two hours at a time sounds heavenly compared to the 10 hour 12 hour mediation. Everyone is just ready to they don’t care what the deal is. They just want to end it.

Melinda: I know. And I think that is the downfall of our traditional mediation. And probably as a community, we need to do a better job in mediation of saying, hey, it’s five o’clock or six o’clock, we really need to stop for today and come back another day. To just not have people entering into agreements just because they’re exhausted.

Holly: I’m always afraid, though, if we’ve made a lot of progress, and someone has moved, where we didn’t necessarily think they were going to move, that they’re going to go sleep on it then and the deal’s gone.

Melinda: I know do you lose ground, that’s always the concern. I will tell you in my mediation practice, where I’m the mediator, because I don’t believe in working till 10 at night, I’ve done it before, but I don’t think it’s advisable. I often encourage people to come back and finish another day, and we very seldom lose much ground.

Holly: That’s good to know. I also seen sometimes I like to ask for this. Sometimes if I’m mediating and we kind of, we see the time ticking down. I like to say, can we get a mediator’s proposal to maybe let’s just get us there quickly. Everybody knows where this is supposed to be except for the parties and the mediator may be able to help us. Do you do a lot of proposals like that?

Melinda: You know, I’m willing to I would not say that most people are asking me to, but I’m definitely willing to. You know, after doing this 27 years, I’ve certainly seen a lot of deals struck and a lot of deals at courthouse. So I would definitely feel comfortable doing that.

Holly: So getting back to a collaborative law, a lot of our listeners might not have a lot of experience with it or really know anything about it. So we talked, you mentioned the two neutrals, a mental health professional and financial professional. So let’s start with the mental health professional. Can you kind of explain what their role is and how working with the mental health professional goes in the case?

Melinda: Yes. So the mental health professional is neutral. They’re not on either party’s side. They’re not there to do therapy. They’re there to help facilitate the case. They’re kind of the leader of the team, the leader of the meeting, they take us through the agenda. If the parties have children, they would meet typically offline with a mental health professional without the lawyers and talk through all the items they need to make decisions about for the parenting plan.

The future schedule, what are we going to do for the holidays, the decision making power. And then they bring that back to the lawyers and get the lawyers input before they make a final decision. And really one thing that’s great about the mental health professional in the collaborative room, when we’re all meeting together, is they help us to deal with the anger, sadness, fear that gets in the way of the deal. All that normal emotion that gets in the way.

Holly: Do you bring in the mental health professional, even when there are not kids involved in the divorce?

Melinda: Yes, yes, I think it’s super helpful. Obviously, they don’t have that role or piece of their job, where they’re working on the parenting plan, but it’s still very helpful to keep us on track on the deal. And I just think it ends up saving time in the case. Because for example, we always tell everyone in those two hour meetings, anyone can take a break anytime.

And if somebody is kind of devolving, you know they’re disintegrating in front of us, we can take a break and the mental health professional and I, let’s say it’s my client, can go meet with my client for a minute and figure out what is going on, and try to get us back on track and then make a call if we can go back and resume or need to come back another day. But having that mental health professional there, they recognize things and cute visual cues, that maybe they call for a break before it gets to somebody blowing up, for example. They see things that we’re not trained to see as lawyers.

Holly: So we were talking a little bit ago about the collapsing client. If you have that collapsing client, do you still allow them to go off on their own with the other side and meet with the mental health professional?

Melinda: That’s a great question, I think you would have to decide the degree of collapse. And and if you think and talk about it, I talked about it very frankly, with my client, I even met with one of my client’s counselor, and talked through some of it. Of hey, you know, how can I best support you knowing what we know about your dynamic with your spouse? So I think you’d have to make that decision. It’s not required that they have those meetings without the lawyers.

So you could certainly say in this case, we’re going to do all that with the lawyers present. Or you could say, it’s only, and tell the team this is only information providing, like the lawyers don’t need to sit there to hear, here’s what a standard holiday schedule looks like. And you all think about if that would work for your family. So it could just be no decisions, not even what do you think might work for you, just information providing, and then bringing the lawyers in for the decision aspect of it.

Holly: So the other neutral would be the financial professional, which I would assume you’re only bringing in instances of divorce. And if we were only dealing with custody, you would not have that piece. But can you explain what the financial professional neutrals’ roles are?

Melinda: Yes. So he or she is the leader of conversations about money. So that could be the division of assets and debts. How are we going to pay the children’s expenses going forward? Is there going to be any type of alimony component. And they gather all the financial data, that person, they build a spreadsheet, and then they lead us in those conversations.

Holly: So I know in traditional litigation, we often want to have a sworn inventory because we’re worried that the other side might be hiding assets or not really being truthful about what they are disclosing if we just take their word for it. What kind of protections are there with the financial professional in the collaborative process, that they are getting all the information?

Melinda: So of course, there’s never 100% protection in litigation or collaborative. But what’s great about collaborative is the statute says that it is transparent. This is a transparent process, meaning any information anyone wants they get. In litigation, that’s not true. in litigation, we ask for information, and then we can have a big fight about if it’s relevant, is it too much information, it’s too burdensome to get it. And then the judge can decide how much information we get. So in collaborative, none of that. You ask for it, you get it period.

So you’re much more likely to get a lot more information in collaborative than in litigation. But if somebody was planning their divorce for five years, and they got paid in cash in their job and they stuck the cash and the floor, you know, could somebody do something deceptive, certainly. But if they’re not paid in cash, there’s always a trail and most people aren’t paid in cash. So there’s going to be a paper trail. Hey, what does your 1099 or your W2 say? Okay, where did that money go? And if it’s not showing up someplace, you know, there’s a hidden account.

Holly: Do you have the financial professional taking the lead on getting documents from both sides? Or do the attorneys take that first step of gathering documents from their clients?

Melinda: Normally, the neutral financial would give a list to both of the clients of here’s the information I need. And then the clients provide that information to the neutral and the neutral. Some of the neutrals will have kind of a vault, I’ll say of information where they give it the lawyers links to it. So we can access the vault and so can the clients at any time and see the data. But we don’t have to handle all the data through our office. And that saves the clients money ultimately. So if you’re as the lawyer anything you want to look at or downloaded into your own file, you could but you don’t have to. It can all be just live with a neutral financial professional.

Holly: For attorneys who have never done a collaborative case before, what are the steps that they would need to take to learn about the collaborative process and to take, handle a collaborative case?

Melinda: So the only thing that’s required is a law license. So this I should be set to go. But what they should do ideally is read the statute, there is a statute in the Texas family code that governs this process. And ideally, they get trained, but they’re not required to. And I’ve done cases with many lawyers that didn’t get trained, and I just kind of trained them in the background. But there is an organization called Collaborative Divorce Texas, that provides a basic interdisciplinary training, typically twice a year in the fall and in the spring.

And it’s a two day training, and it will have lawyers, financial professionals and mental health professionals there. And it’s, it’s a very good training. I’m one of the trainers some of the time, but not all the time. So that sounds a little self congratulatory, but I didn’t design the training, I did help with it. Um, but we do have a lot of good trainers in the state of Texas, and it’s the training is open to the whole state. So we’ll have lawyers there from all over the state.

And we have trainers from all over the state, you know, we just rotate taking turns providing the training. But that training is is very helpful to start, you know, to understand how it works. And then if they were a little nervous about doing it if they hadn’t done it before, they could ask to shadow a case. And they could offer to take the minutes we have minutes of the cases and shadow and just be an observer basically, of someone else’s case. And I often have somebody shadowing one of my cases. And it’s just a good way to learn and see in action what it is we were talking about, you know.

Holly: Yeah, that sounds like an excellent opportunity for younger lawyers to or maybe not necessarily younger, but less experienced lawyers who haven’t done it before to get to watch that process and get to really understand what’s happening better than just seeing, you know, somebody on the screen telling you about the process.

Melinda: Yes, yes.

Holly: Are there, I know you said all you need is a law license. Are there any particular certifications that attorneys can get?

Melinda: Oh, that’s a great question. So Collaborative Divorce Texas offers credentialing. And they have two levels of credential. They have a basic credential and a master credential. And I’m a master credential. And they started credentialing five years ago. So I was in the first class to get credentialed. And it’s a very, it is very difficult to get credentialed. Because they require you to have a certain number of cases. So for the master level, you have to have 50 cases with signed participation agreements. And then, but to me, the harder part was the level of CLE continuing education that you have to do that is collaborative focused. Not only to get your credential, but to maintain it.

Every five years, well, every year we have to recertify a little bit but then every five years, we have to turn in and I’ve been working on that because my five year anniversary is coming up how much we’ve done in the CLE area, and it is a lot. And so they really want the credential to mean something. And so that’s why they’ve made it so difficult to achieve. But they do have those two levels of credentials. So I think if somebody wanted to set themselves apart as a collaborative lawyer, and to show to the community that they really are, they’re not just saying they are and they really have no idea what they’re doing, but they really are interested in it.

Then they could pursue that credential and even if they’re starting out, and they you know, they don’t, they don’t meet the requirements yet. It’s good to figure out what they are and download the application. So you can be working towards it because it does take some pre planning to get that all that CLE in, and to make sure that you’re documenting your cases in a way that you can prove in the future. Because that was part of the problem when they first brought rolled out the credentialing is we didn’t know it was coming. So they said, okay, if you’ve had 50 cases, you have to give us a copy of your signed participation agreement. Well, cases I had 10 years ago, do I have that? So planning ahead for your future credential is a good idea.

Holly: Yeah, that’s a great advice. And same thing, if somebody is looking to get board certified. That exactly, there’s a lot of criteria you have to be and knowing what you have to hit and keeping track of it along the way can save you a lot of trouble down the road.

Melinda: Exactly.

Holly: So how do you use your knowledge of collaborative law to better mediate in litigation?

Melinda: Yeah, that’s a great question. So I don’t announce in every mediation, hey, I’m using my collaborative skills. But I am. One thing that we learn in collaborative is to be very interest based, meaning instead of just saying, this is my position, and I want it, and I’m going to pound my fist and stand firm on that, my position is to express an interest. And an interest is a little bit different than a position. And I think it really helps a mediation to get to the why behind the interest. So when I mediate, I really spend time talking to each of the parties about why is that important to you.

And when the other person can understand the why behind it, they’re much more likely to agree to it. It also gives us all everyone participating, the lawyers and both parties and me the mediator, it gives us all the ability to see other other solutions. Because maybe they’re saying, I cannot move out of the house, I have to have the house. And when we get to the underlying interest, that I just need a safe place to live. And the reason I’m clinging to the house is because of that neighborhood, or that school district or because I have a fear that if I ever leave the house, I’m going to be homeless.

You know, once we understand the why behind it, there’s a lot of ways to meet that interest. Besides that physical house. And that happens, even with my own clients. Sometimes you have a client taking position, you don’t understand, that isn’t even to their advantage. But if you can drill down and be a good listener, and that’s hard for lawyers, I think we’re better at talking, than at listening. But if we can be a good listener, and really draw out the client or in mediation of the two clients, what’s behind that, it will really help us to solve it.

Holly: So a lot of times the why behind it is a valid why, you know, I want to I want a safe place to live. I don’t want my kids to move schools, whatever the case may be. Sometimes the why is he’s a jerk, and I want to bury him. So when you find that that is the root of the why, how do you handle it?

Melinda: I think that’s actually an easier if that is the why it’s usually easier to get that person to shift off of it. Because it’s it’s just revenge a little bit, right. And revenge is usually not something somebody is going to give up other things for. So when you start helping them see the bigger picture, and helping them to see, hey, if you don’t really need that item you’re hanging on to for revenge, maybe we can trade it for something you really do need and want. And then they start to see that and maybe give up on the revenge piece, which we all know is not healthy.

Holly: Yeah, I try and shut that down real fast. In cases, hopefully it’s shut down long before we ever get to mediation. I can usually tell them the consult, if that’s where their focus is and to say, you know, don’t look backwards, we want to look at putting you in the best possible position going forwards and is leaving your child’s father homeless and destitute going to do that? No. Okay, well, let’s move forward. But not everyone is able to let that piece go quite so quickly.

Melinda: Some people hear reason right? And some people don’t and so then you have to shift to okay, is that even available at the courthouse? Is that uh, you know, they’re not going to burn a cross in his yard. It’s just not an option available. So what is available? So I kind of shift depending on what’s working and not working with people. I shift my approach.

Holly: So in collaborative law, where if it breaks down and the parties are not able to reach an agreement, first of all, how often do you actually see that happen in practice?

Melinda: We did a survey for a while we were trying to keep track statewide of how often it was opting out. And it’s less than 10% of cases are opting out. For me personally, it’s a much lower, it’s much lower than that. I would guess, I don’t even know how to put a percentage to it. I think I’ve had three in 20 years opt out.

Holly: Yeah, 10% would seem like a high percentage. That number would surprise me. But for those who don’t know, if the parties do not reach an agreement, they’re back to square one with new lawyers and all of that. So if that happens, can you just sort of describe what’s the process? If the collaborative process breaks down, what happens then?

Melinda: Yes, so the statute requires a 30 day waiting period, lacking emergency, and we mean actual emergency, not that the client thinks it’s an emergency, right. So someone has to file with the court in writing that they are terminating the collaborative process which either party has a right to do without cause, just I’m done. And then that starts the 30 day transition. And nothing can happen during those 30 days, meaning no hearings are going to be had during that 30 days.

And that’s to avoid somebody getting surprised, right, you wouldn’t want someone to know they’re going to opt out and get their ducks all in a row and have the other person feel like they’re behind the eight ball. So instead, there’s this 30 day waiting period, to transition the file to litigators. And if it were my client, in my case, and they were opting out, I would then help my client find a new lawyer. I wouldn’t just say, oh, good luck good bye, you know. And I would help them transition the file to the new lawyer and help that lawyer have the information they need to move forward.

Holly: So the collaborative process is supposed to be very transparent. So when you end up finding yourself in litigation, is that all locked down? Sort of like the mediation is confidential? Is the collaborative process confidential? Or can any of that get through?

Melinda: It’s very confidential. So you cannot put any of those neutrals we talked about on the stand. Nobody can testify about what was said. You can’t take a document that existed outside of collaborative like your tax return, and lay it on the table in collaborative and create confidentiality around that, you know. But if it was created in the collaborative process, like the spreadsheet that the financial professional created, it’s confidential.

Now, having said that, you could both agree, the parties could say, we like that spreadsheet, I want to use that in litigation. And if they both agree, they can certainly waive confidentiality as to that one piece if they want to, and benefit from that information. But I’ve never met a neutral who would be willing to testify even if the parties waived it, right. So they’re not going to testify. But they their work product maybe could survive if everyone agreed.

Holly: Of course, if they’re breaking out of the collaborative process, the odds of them agreeing on anything are probably pretty slim at that point.

Melinda: Yeah, you just don’t know. Like, maybe their fight is about the kids and not about the money or vice versa. But to your point, usually cases that break out, I believe, usually one of the parties is mentally ill, and they just are not capable of making a decision. They’re going to need a third party to make it for them.

Holly: So if the parties are able to reach agreements in the collaborative process on say, the financial piece, but not the kid piece, can they exit the collaborative process with a partial collaborative agreement and then only litigate on the other piece?

Melinda: Yes. And I would recommend that they you can mediate within collaborative, and sometimes I serve as the mediator in that role. I would recommend that they enter an MSA on the piece they have resolved. So there’s no chance of that getting revoked. Because as you and I know, Holly, the mediated settlement agreement, if it was even if it’s partial, that would be done deal in summit. So that would be my recommendation.

Holly: Do you usually mediate in the collaborative process when things seem to be breaking down with the traditional route?

Melinda: It’s usually the last ditch effort for people that they’re like, oh, we don’t know what else to do. Let’s mediate. Every once in a while it’s earlier that they’ll involve me earlier, but usually it’s the last ditch effort. And I always think, oh, this is going to be hard because they’ve kind of been mediating, right. I mean, they’ve already been in an alternative dispute process, but I’ve been successful. So sometimes they just need a fresh perspective or they need the focus of the day.

And the idea that this is the day we’re settling. And that’s the downside of collaborative in a way is it’s never the day or every time we needed today, but it’s not the end of it, right. And that’s the advantage to mediation is everyone has on their radar, we are settling today. This is the day we’re doing that. And just having that expectation of reaching settlement, I think can help us get to settlement.

Holly: Alright, so one question I like to ask all of my guests on my podcast is, if you could give one piece of advice to young family lawyers, what would it be?

Melinda: Okay, I love this question. And I would even give it to myself, if I can go backwards in time. I think that a big mistake that young lawyers make that hurts these families, is they’re so worried about something bad happening to their client, that they give them advice that, unfortunately, increases the litigation. And what I call hits the war bell. They hit the war bell accidentally out of fear and worry. So my great example of this is that the lawyer meets with the client. And the client says, what if he takes all the money and does something weird with it. And so then the lawyer tells the client, we’ll go take the money out of the account in advance or take half of it, that’s very common.

Go take half the money before you file for divorce. Well, I even I mean, I did that too, when I was young. But the problem with that advice is, one, it’s probably not necessary, they probably aren’t going to go get rid of their own money, right. They have no incentive not to preserve their own money. And two, they have just hit the war bell. And the minute that person figures out that they did that, we are off to the races for world war three. They have this horrible divorce now. Highly litigated, and you can’t get peel it back sometimes.

So this is how I recommend they approach it instead, this is what I say to clients. When they say, oh, what if he takes all the money, I don’t have any money? I say, do you have enough money? Or can you borrow from someone or use your credit cards to get you by for one month? And if they say yes to that, then I tell them then don’t do anything because I can get into court in a month and get that money back. As long as you can survive for that short period of time. I used to say two weeks. Hard to get into court in two weeks.

Holly: But I was just thinking, are you going to get in in a month?

Melinda: But really, even if we had to do something emergent to get the money back, as long as they could bandaid themselves financially long enough for me to get in there, then they can relax about it and not hit the war bell. And very, very seldom in 27 years have I ever seen I’ve never had to go do that nobody’s ever taken all the money. So that’s I would say that’s my best advice to young family lawyers of something that I see commonly done that makes no sense.

Holly: That is, I see that a lot too, you and I it’s very common in the consult. The fear that the money is going to be gone or, you know, he’s gonna run away with kids or all of those things. And I think that’s great advice. Just take step back. Don’t freak out. How can we do this amicably and get you out on the other side in the best position possible? Okay, so we’re just about out of time. So where can our listeners go to learn more about you?

Melinda: So we have a website, and it’s www duffee spelled d u f f e e and eitzen. And eitzen is spelled e i t z e And and is spelled out, a n d.

Holly: Alright, well thank you so much for joining us today. For our listeners, if you enjoyed this podcast please take a second to leave us a review and subscribe so you can enjoy our future episodes.

Melinda: Thank you Holly.

Voiceover: That Texas Family Law Insiders podcast is sponsored by the Draper Law firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at

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