Transcript

Brandi Crozier: From my perspective, as the attorney who’s representing the petitioner in a case, that is probably the most important job that you have prior to going to mediation is working with your client ahead of time to have an opening offer ready to go.

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 are welcoming my partner Brandi Crozier back on the Texas Family Law Insiders podcast. And today we’re going to talk a little bit about how at our firm we help clients prepare for mediation, and how we prepare for mediation so that we can make the most out of the mediation process and increase, increase the chances of success and decrease the amount of time that everybody has to sit there trying, you know, doing things that should have been prepared in advance. So you do a lot of mediations both as the mediator and as the attorney with the clients. So I thought it would be great to chat with you about what your process looks like for that. And hopefully, it’ll be helpful for some other attorneys. So why don’t you tell us a little bit about your experience with mediation.

Brandi: So my experience with mediation is, you know, multifaceted. I have mediated over 250 cases in my career. And so I think that gives me a unique perspective in preparing clients for mediation, because I’ve seen it from the role of the mediator and as the role of the attorney representing the client in a mediation. And I will tell you, as the mediator in situations like that, it’s very obvious when things have not been prepared to advance. And it’s one of the things that I think slows down the mediation process is when we have to do discovery on the fly, at mediation. And so one of the cornerstones for me in preparing for mediation, is to make sure that we have inventory and appraisements exchanged in advance with recent numbers, if possible.

So one thing I always encourage everybody to do, whether it’s a pro se party on the other side, or if you have someone who’s represented by an attorney on the other side, is to have an agreement to exchange inventories about two weeks before your mediation date is set, that allows you time to review the inventories, it gives you pretty accurate, current numbers. And then that also gives you the ability to see if you need to get a little bit more information if your client thinks that something may have been missing from the inventory. And then if you don’t have everything, you’re able to go ahead and cancel or postpone the mediation without having to pay the mediator’s cancellation fee, typically.

Holly: And so just to clarify, for anybody who’s listening, an inventory would only be required if we’re talking about a divorce mediation.

Brandi: Correct.

Holly: So you know, we’ll kind of start out talking about this from a divorce perspective. But obviously, the pieces related to custody would be equally applicable if you were only mediating custody issues.

Brandi: Correct. So as far as going into custody, components of the mediation, I would say, the things that are important to have exchanged in advance prior to going into mediation, are going to be the pay stubs of the party, who is going to be paying the child support, you want the health insurance breakdown for the cost to cover any premiums on a monthly basis. And then also the last two to three years tax returns. So you can run a child support calculation prior to even going into mediation.

Holly: And generally I think we’re gonna want both sides’ information. Because even if our client is sure that they are not going to be the one paying child support, then you never know what can happen at mediation. So if you don’t have that information in advance, it can be a problem.

Brandi: Right. And you took the words right out of my mouth. And so I think it’s important because you never know if they end up settling on a 50/50 possession schedule and someone’s paying off that child support, you want everybody’s financial information in advance.

Holly: And sometimes the client, especially one who, you know, maybe has been a stay at home mom, or they’re quite confident that they’re going to be the primary parent. Or maybe it’s a parent who makes quite a bit of money, but is confident that they’re they’re going to be the primary parent. They might be resistant to turning over that type of information. But at least if we can get the client to give it to us, then if it becomes relevant at mediation, we already have it to exchange or to give that information to the mediator.

Brandi: Right. That’s exactly right. And when it comes down to the health insurance premium breakdown, I think a lot of people they don’t often think about the fact that if you are paying a $500 a month premium, that that’s different when you start adding your other family members. So your spouse, or domestic partner or children, and some plans are different than other plans, meaning that sometimes the cost increased per child.

And sometimes it’s, it’s an extra $200, or $300, if you will, for every single child that’s added to the plan, regardless of how many there are. And most people in my experience don’t necessarily have that readily available. And so they need to reach out to their human resources department with their employer to pull that information. You want to give your client enough lead time to make sure that they can get in touch with the appropriate person with their employer to get that information. So we have that.

Holly: So I know that it’s our firm’s practice, generally to have a mediation prep meeting, typically via Zoom with our clients before mediation. How often in advance, do you like to meet with the client for that?

Brandi: So I think the sweet spot with that is, after you, if you’re talking about a divorce is after you get the inventory and appraisement back, but in the week before mediation. And if it’s a custody case, only, then I think it’s about the week before mediation as well. And the reason why is because that if it’s a divorce, you have the ability to go through and look at all of the inventory information and do an analysis of that. And then from the attorneys perspective, you have the ability to say, okay, these are different options that we can do as far as percentages of the estate. And sometimes I’ll show the client, what a 50/50 split will look like, all the way up to a 60/40 split, depending on the circumstances of their case.

So you have the ability during that week between the inventories are exchanged, and when you meet with the client, to have the ability to prepare all of that, so you’re ready for the client meeting when it’s a divorce situation. And then, but I usually have the client in a custody case, get the information regarding their financial information and that health insurance information a week before I meet with them. So again, I have the ability to go ahead and run the numbers and the different calculations as well.

Holly: So on the custody piece of it, what types of things do you discuss with the client in that prep meeting?

Brandi: So everything. So I always like to tell clients that there’s a big velcro wall, and during that prep session, that we’re just going to be throwing different ideas out there and see what sticks and what doesn’t. I think that during that prep session, you as the attorney need to have the ability to listen to the ideas, the good ones and the bad ones. And the reason why I think the bad ones are important because you really get a feel for what’s going what your client really wants, as well. And you can also explain to them, the legalities of you know why certain things just aren’t going to happen as well. So, you know, a client might come in and say, well, I want 55 days during the summer.

You can say, well, I’m sorry, that’s not going to work unless the other side agrees. Why do you think that you should get 55 days? And it’s really a time to kind of go through and ask those questions. So you can set the expectation with the client early on as to what the parameters they can do within the law are and what their likelihood of getting something like that is in court. I know that that’s always one of those things that attorneys always use when we’re going to mediation is they go, I don’t know that you would ever get that in court. And so it’s I think it’s important to have that conversation with your clients prior to going into mediation.

Holly: Right. I agree 100%, managing expectations prior to mediation day is so critical. If you have a client who in a divorce, they feel like they’ve been wronged, they are they have much less earning capacity than the other side. Say they’ve been a stay at home parent for years. And there’s a lot of blame being thrown around and they think they’re going to get 70, 80, 90, 100% of the estate. And if attorneys don’t do a good job of convincing them that A that is almost never going to happen and B where the range of reasonable is based on the circumstances of their case, then you can waste so much time in mediation, trying to have the mediator hammer them about how unreasonable they are and get them to the realm of reality.

Brandi: That’s exactly right. And one of the other things too, when you’re going through this initial client prep meeting, is that if you do have the client whose expectations are unreasonable, and despite your best efforts of convincing them during that prep session, that mediation statement to the mediator is confidential. And you might want to give the mediator a little bit of heads up that where their position is. So the mediator also can come in with the tools that they have to help the mediation process along as smoothly as possible that day.

Holly: So speaking of the mediation statements, I know when I attended have attended mediations, it’s so unusual that the other side has given the mediator absolutely nothing. What do you like to provide the mediator in advance?

Brandi: I like to provide the mediator in advance a child support breakdown, from what we think that child support should be. Whether that is, you know, our client paying child support, or the other side paying it if you know, and sometimes you might not have the breakdown exactly, but you have a general idea of how much they make. Okay, I also like to give the mediator, the insurance breakdown. And then if we are in a divorce situation, and we’re dealing with the inventories and appraisement, I like to give the mediator the inventories of both parties. And I also like to give the mediator the spreadsheet that I have prepared on the based on the proposal that our client is making the opening offer with if that’s the case. And I also like to give a mediator, the most recent filings. So you know, if someone has amended their petition eight times prior to mediation, the eighth amended petition, you know, or the other side’s response.

Holly: Do you typically do a letter to the mediator or something that is explaining what’s going on, what the issues are, what your client’s position is? That sort of thing?

Brandi: I do. I think that that’s really important for the mediator to have in advance, because a lot of our clients in the family law realm, they need to be heard, right. And so and they like they need to tell their story. Part of what I do during the mediation prep session with the client is, I try to reiterate to them that mediation is what we’re going to do going forward and it’s looking towards the future. And remind them that it’s not that the past doesn’t matter. It’s just that how do we utilize our time efficiently at mediation. And so you have to, from my perspective, as the attorney, give the mediator, the high points in the background of the case, so they know. So that way, the client isn’t wasting the first hour, hour and a half, two hours, sometimes rehashing everything that’s happened in the case.

Holly: And I know, to a certain extent, a lot of clients, they do want to be heard, and they want the opportunity to tell the mediator their side of the story. But hopefully, if you’ve given the mediator the high points in advance, it can reduce the time on that. And, you know, maybe the mediator has a little bit broader picture than what the client is going to tell them in their opening diatribe if you will.

Brandi: I agree. The other thing I like to give the mediator too, in advance, if possible, because sometimes it’s not always possible. But if you’re the petitioner in the case, I always think that you need to come in with an offer in hand written out. And so from my perspective, as the attorney who’s representing the petitioner in a case, that is probably the most important job that you have prior to going to mediation is working with your client ahead of time to have an opening offer ready to go. And because so much of what we do in mediation is not straight by the family law code.

And we’re going to have highly customizable things in mediation, which is part of the beauty of going to mediation is that you don’t have to just follow exactly what the family code says is that for, you know, kind of the the weird or odder possession schedules or things that people want to do, I think it’s really helpful to give mediators language that you’ve already drafted in advance, and then they can work off of that and tweak it as the day goes along. Because it just saves time. And then you’re also not, you know, at 5pm going, oh, gosh, how am I going to have to write this highly detailed, you know, specific thing to make sure that it’s exactly how we want in the final decree to avoid any hiccups. And when we get to that drafting stage.

Holly: What about if you are the respondent and you’re not good at making the first offer?

Brandi: So if I’m representing the respondent in a mediation, I think it’s a similar position, if you will, is that if it’s a divorce case, you want to have, you know, your inventory spreadsheet ready to go so you know, what you’re looking at. You also want to know from your client’s perspective, what child support calculations are, and then as I think while it’s not necessarily as key to have precise offer ready to go, I still think you need to have a bulleted offer with the high points of your client’s absolute musts and your clients hard no’s on things. And if there is something even as the respondent that they may to be creative and coming up with I say, go ahead and take the time and draft that language ahead of time, and still give that to the mediator.

Holly: So you mentioned, you know, list of your clients hard no’s. I try to encourage clients not to have hard no’s going into mediation, because everything gets put on the table. And I think it’s more important to look at priorities, because maybe one of those hard no’s isn’t really a hard no. But if you’re going to get priority number one, by putting this other item on the table, that’s not really that big of a deal, then, if you put it on the hard no list, the client may never be willing to do that.

Brandi: So hard no’s might be might be a misstatement. And what I mean by that is that there are certain things that I know are going to be hard sells for my client at mediation. So for example, if we’re dealing with a case where, you know, maybe the other side has an issue with alcohol or drugs, for example, it probably when I say a hard no, a hard no is going to be jumping into like overnight possession or unsupervised possession right away. And so I like to give the mediator a heads up on some of those things that are going to take a little extra time probably getting our client to move from that position.

Holly: So what types of things do you like to have written out? I know a lot of mediators have their own templates for MSAs. And they’re kind of working in them as they go along? Do you try and get mediators to use yours? Are you just providing them bullet points they can plug in?

Brandi: So I’ve seen it done a couple of ways, in different cases. I think that if you think you’re confident, you’re going to be really close on mediation, go ahead and have the language of the decree ready to go or the custody modification ready to go. And then you can just slap that on the back of it, because it makes it a lot easier when you move on to the drafting stage. I typically will have things that are written out as far as what the clients offer is. So I break it up into different sections.

So and we’re just going to talk in terms of divorce with children at this point, because the custody pieces would apply. So I would have a section that says, you know, kid issues, and then I would have a section that says property issues and in that assets and debts as well. And I like to give that to the mediator in advance. And then I also like the client to review it. So after that initial strategy conference, or sorry, not the strategy conference, but the mediation prep session with the client, I get done what they want their opening offer to be. And then I take the time, and I draft it, and I send it over to the client, and I get their approval on it.

And that still gives you if you’re doing that a week before your mediation starts. That still gives you a week to work with your client leading up to mediation to fine tune that, because I think we all know, it’s one thing to have a conversation with a client and they’re like, oh, yeah, that sounds great. And then when you put it on paper, they’re going, oh, wait a second, because they’re they’re reading through it and really thinking through it. So I think it’s really important to get your give your client the lead time to process everything, before we go into mediation as well.

Holly: And what do you tell clients, when you send them that first offer to help them understand there is 0% chance this offer is going to be accepted. So you need to have room to move.

Brandi: I tell them that when we’re doing our, you know, mediation prep session with the client. It’s the art of negotiation, right. And so if we know that there are going to be things that maybe the parties have already discussed, and we have a general idea that these things are going to be agreed to, those are the no brainers in that, you go ahead and put those on there. Now if there are things that need to have some wiggle room, I like to say, you want from my perspective, I think you want to start from a position that gives you more space to make the move to where your client really would like to end up at. Because then your client has the ability to give because if you go in with your best and final to start the day, there’s nowhere to go from there. And it comes out with a very hard line right from the get go at mediation.

Holly: And that’s a really hard thing, even for for me to grasp. You know, certainly for clients that don’t do this every day. It’s hard to grasp. Well, if I think if this is where I really want to end up, why don’t we just get there. And so it’s kind of a balancing act of can we have to leave room to negotiate because that’s what this is. But we don’t start way over here on the far end of the spectrum because then we’re never going to get where we need to be.

Brandi: Right and it has to be within reason. Right? So there has to be you know, you’re not asking to move like around the world. You’re asking to move you know down the block a little bit on some of these things. And, you know, when clients are like, well, why wouldn’t I just go in with exactly what I want? Well, because what if they’re willing to give you more than exactly what you want too? And if you’re getting a little bit more over here, but you’re giving a little bit over on this side, then on something that isn’t necessarily a top priority issue for you, then what does it matter? You’re getting something you want, and they’re getting something that they want. So I always describe mediation to clients.

And I always preface this with I’m sorry, it’s a little bit of a sunny disposition on mediation, but I always explain it to them that it’s like a rainbow. And so on one end is your pot of gold, and on the other end is the other side’s pot of gold. And if your favorite color is blue, then you’re going to want more blue at the end of the day in your pot. And if the other side’s favorite color is orange, they’re going to want more orange at the end of the day. And everybody ends up with some variation of all the colors, some colors are a little more opaque on one side, and some are a little more translucent. And then what do you have to have to have a rainbow, you have to have a little sun, some rain and some clouds. And so it’s not a perfect day, but it is a resolution at the end of it, rather than going to court and having to go to litigation.

Holly: I like that analogy.

Brandi: Thank you!

Holly: So one of the other things I think is really helpful is have some sort of checklist to take into mediation to make sure that you are hitting all of the important pieces. And I know there can be a lot of, you can get creative in an MSA. And there are unless you have a checklist of common or even unique provisions that might be included. You know, how alternating Halloween or alternating Easter or some of these other unique things that have come up along the way, then nobody’s ever going to mention it during mediation, and the clients later going to come back. Well, how come I didn’t know that we could swap Halloween?

Brandi: Sure. So I think that comes back to your mediation prep call with your client is figuring out what’s important to them. And so when you have that mediation prep call with them, there is a list of things that you do and you go through or we have one that we can use the clients and say, okay, is this important to you? You know, if you don’t know, by the time you’re ready to go to mediation, and sometimes you don’t know at that point, you know, what religious holidays and things like that are important to the client. Or if they’re just other random days throughout the year that are important to people.

Then, those are questions that you ask the client during your mediation prep session to make sure that you are making beyond just kind of the standard things that we look for in mediation, right. Any kind of other customizable terms. And then when you go into mediation, as the lawyer, you should have your offer printed out and handy. So you can mark okay, well, that was agreed to that wasn’t agreed to, or we’re tweaking this piece of it and that sort of thing as you’re going along.

Holly: Well, that sounds great. So any other last tips on preparing clients for mediation that you have that we haven’t talked about?

Brandi: So I think one of the biggest tips to give to clients when you’re getting ready to go to mediation, is you need to let them know that sometimes these things are over in five hours, sometimes these things can go 10 or 12 hours, depending on what issues are, you know, before before the mediator that day and what the parties are facing. I think you need to let them know in a lot of detail what the mediation process can be like. Letting them know that sometimes the mediator might spend more time with them, or might spend more time with the other side.

That doesn’t mean things are going badly, it just means that sometimes the mediator may need to spend a little bit more time in the other room, walking them through some of these other things. Especially if you’re the petitioner in the case, and you have a pretty detailed opening offer. When you go into mediation, I think you really need to let your client know they’re going to be over there for a while with the other side going through everything, you need to remind them, hey, this took us two or three hours to come up with. So they’re going to need some time to go through and talk about things over there too.

And have any counters at to it as well. I always let the client know that, you know, dress in layers because if you’re in person, then you know it could be warm. It could be cold in these mediator’s offices. Be prepared for a long day, but we hope that it’s a short day. And then also if there’s anything that’s going to help them be comfortable while the mediators in the other room whether maybe they like to do crosswords or knit or maybe they want to download their favorite show to their iPad or something like that to bring with them during the downtime. I think go ahead and let the client know to do that.

Because I think one of the worst things that you can do when a mediator is in the other room and you’re representing a party, is to kind of second guess the offer that you’ve already sent over. Because that is one of the biggest pitfalls during mediations, when you’re representing somebody in a mediation that I think lawyers run into, is that they’re they don’t have good client control. And they continue to talk about things and it lets it spiral. And I think you need to be very clear with your client that once you send an offer out the door, that’s it. And you need to set that expectation early on during that prep session.

Holly: One more topic that came to mind, what do you tell clients, or how do you handle clients wanting to bring a third party to mediation?

Brandi: So I always make the mediator play the heavy in that one. I typically tell the clients that, you know, most mediators don’t allow it. And that if you want to bring them, I think it’s better to discuss it up ahead ahead of time, because it can really make the mediation go sideways, right from the start. And so at the same time, though, if it’s someone’s spouse, or you know, maybe it’s a parent or something like that, who you know, the other side is going to be calling to run everything by, I’m okay with that person being there, quite frankly. Because I would rather have everybody hear the same information at the same time than playing the game of telephone and having things misconstrued.

And so I let the mediator make that call. And if we’re mediating with someone, and we’ve agreed to the mediator, then I asked the client to trust my decision as the attorney and our decision to hire that mediator for their mediation, to make the call as to whether that third person at the mediation is helping or hurting it. Because the third person, even though they’re not there can still hurt a mediation, if the other side is picking up the phone and calling them every five minutes.

Holly: Right, which is worse probably than having that other person sit in on the mediation. I usually have seen mediators say they can stay until unless they’re causing trouble.

Brandi: Correct.

Holly: If they’re getting in the way of a settlement, then they’re gonna have to leave.

Brandi: And when I’m mediating cases, that’s exactly what I do. And I think you know, you, for me, I have a perspective to be able to tell clients look, when I mediate cases, if someone brings someone who I’m not expecting, my rule is that they are there is a support person, not to run this mediation. And that, if at any point that I think that they are not being helpful to the process, I’m going to ask them to leave. And I have asked people to leave before as the mediator.

Holly: Well, I think that’s all great advice. Thank you so much for chatting with me today about preparing clients for mediation, and hopefully we can help some attorneys out there be more prepared.

Brandi: All right. Good luck, everybody. Thank you.

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 www.Draperfirm.com