Transcript

Carrie Tapia: Clients deserve to have a lawyer who’s prepared for their mediation and is able to make recommendations and help them settle their case, and not be trying to figure out what your kid’s name is and oh, did you want this house or not in the middle of mediation.

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: Welcome back to The Texas Family Law Insiders podcast. Today I’m excited to be joined once again by my partner at the Draper Law Firm, Carrie Tapia. If you don’t know her, Carrie is a board certified family lawyer who is local to Tarrant County, but also practices in other DFW areas. And today, we are going to talk about how to prepare for mediation in your family law cases. So thanks for hopping on with me, Carrie.

Carrie: Yeah, thanks for having me.

Holly: So why, I know when we go to mediation, it really feels like a lot of attorneys have not looked at the case. They have not prepared. They have not thought about an offer. They don’t have an inventory spreadsheet. Can you explain the importance of going into mediation prepared?

Carrie: Well, there are a lot of reasons. I mean, statistically, most cases settle at mediation and don’t go to trial. So it’s kind of the equivalent of showing up to trial unprepared. You’re also paying for three lawyers to be on the clock while you figure your stuff out for your case, versus just two, because you got the mediator there also.

And clients, I mean, clients deserve to have a lawyer that’s prepared for their mediation and is able to make recommendations and help them settle their case and not be trying to figure out what your kid’s name is and, oh, did you want this house or not in the middle of mediation.

Holly: So, how do you decide when the best time is to mediate any particular case?

Carrie: Yeah, so that’s really, I mean, that’s nuanced, right? A lot of times, you’re ordered to mediate by a certain date, based on a trial date. I think that’s probably at least all the courts I practice in, there’s going to be a deadline to mediate. Sometimes, if it’s amicable and there’s just a few little things you want to work out, maybe you go to mediation before you get a trial date and just see if you can, you know, work out those details.

Sometimes, if you’ve maybe got a bad actor with some bad facts on your side, you might need some more space between the bad acts and the mediation to put some space between those things, just like you would for final trial. I don’t think there’s just a one-size-fits-all all case.

A lot of times, especially with divorces, when you get the temporary orders in place and they’ve separated, so they’ve got the two households, they’re doing the possession schedule, whatever that may be. You need some time to see how that possession schedule works out. You need to see, you know, what works with it, what doesn’t work with it.

If there are some tweaks that we need to make and I’ve seen cases, sometimes they’re like, oh, let’s go to mediate. And I’m like, well, the temporary orders have been in effect for three weeks. Let’s give it some time to see if what works for them, what doesn’t work for them, before we, you know, try to figure out final terms.

Holly: Yeah, and I think you also have to take into account the financial situation of the parties, because the sooner you mediate if it’s a realistic time to settle, the less the case is going to cost the parties overall. Sure, there are some cases that we can settle without mediating, but the majority probably are going to need mediation in order to get to a settlement.

And the sooner you can get there, the sooner they can move on with their lives, and the less it’s going to cost them. But at the same time, you have to have all the information, especially in a divorce. When you’re talking about the finances, if you don’t have the information, it’s impossible to go forward with mediation.

So let’s kind of walk through the steps in getting mediation from start to finish. We already kind of touched on scheduling it. You know that could be scheduled for the beginning. It could be 30 days before trial. But what do you do next? You’ve scheduled mediation. What do you do next?

Carrie: Well, for divorce, you need to make sure that you have inventory and exchange, inventory and appraisement exchange lined up. That way you have good numbers for mediation, and you know what the state is, and you’ve got time to manipulate the spreadsheet some ahead of time. We meet with our clients about mediation. A couple of times, I start talking about mediation in the consult.

I just let everybody know at the beginning, this is going to be part of the process. Most cases settle at or before mediation. And just a brief, you know, you and me are gonna be in one room, other side and their attorney in one room, the mediator goes back and forth, just to kind of set that framework.

And then after it’s actually scheduled, we have, like, an information packet that we send out to the clients, just with general overview and information about mediation. And then once we get closer to mediation maybe like two or three weeks out, depending on the case issues. We have mediation prep sessions with our clients.

I’ve kind of started doing it in two sessions, instead of just one, long one to talk for divorces, to talk about kiddos, like just kind of mediation in general. Talk about the MSA, talk about how it’s binding. I call it the Ferrari of contracts. It’s the most binding contract in the world. I maybe oversell that a bit, just to really get them to understand that you cannot change your mind.

I used to say that it was like a tattoo, but now that doesn’t work anymore, because you can have tattoos removed. So we talk about that and then start building out their goals for the kiddo piece. I used to ask clients to do that ahead of time and send it to me, but I found that what I would get from them was either nothing at all or wildly, just wild.

Completely unenforceable, or just like unicorn land. So I started doing that with them and just having a dialog and talking through, you know, these are the five things. These are the things that the court is going to want to address. Conservatorship, session, geographic restriction, child support, and health insurance. And then talk about, you know, what’s your ultimate goal? What can you live with?

And talk about some middle ground. If we’re the petitioner, I walk in with an opening offer. So in that meeting, I’m building out the opening offer with the client on the kiddo issues. We’ve got like, a checklist that we go through to make sure that nothing that we talk about all like the random things like passports and travel, and make sure that everything gets addressed in that opening offer.

Because, as I mean, it’s really bad when you’re like, an hour or several hours into the mediation, like, oh, but what about the blah, blah? And then you have to go back. So we, I try to build that out at the beginning, and then in that first meeting, I try to just focus on the kiddo issues and not really talk about property too much, and then send them the opening offer for the kiddo issues to make sure that they approve it. And there are no other questions. Give them time to think on that.

Holly: And I think in that initial meeting, I think a lot of attorneys miss this piece of it. You have to start managing expectations of what is a realistic outcome in this case. You know the people. You know the number of people who start a custody case thinking that they’re going to get more than what they would get if the other side had expanded standard is staggeringly high. And the number of people who actually get that is extremely, extremely low.

And so I think, you know, I wish more attorneys would manage those expectations, set realistic expectations, so that you know the mediator is not having to break the bad news to them that they are never going to get what they think they are going to get. Because that can really, it can kill a mediation. Or at a minimum, it can make it take way too long to get to where it needs to be at the end of the day.

Carrie: Yeah, you don’t want mediation to be the first time they hear the bad news about their case. They should hear from their attorney first, and then the mediator will probably reinforce it, because sometimes people just need to hear it from somebody else. But yeah, absolutely managing expectations is, I mean, I think that’s an important part of our role throughout the case.

Holly: And with that, you know, with the opening offer, I think there is an inclination by some people to shoot for the stars with that opening offer and make it what’s, in my opinion, a very unrealistic, never in a million years are you going to get that. And if you want to spend all day and all night in mediation and maybe have to come back another day, then great.

We have time to start at polar opposite ends and chip away. Not my favorite thing to do, and I doubt anyone else feels that way either. So I’m like, let’s get pretty darn close to reasonable. Yes, we’ll have in our opening offer, it’s not going to be what they’re going to accept.

We know that, so you have to leave a little bit of room for negotiation. But you know, if we’re going to end up, if we’re looking at a spectrum of zero to 100 and we’re going to end up somewhere between 48 and 52 on the scale, let’s not start out at two. You know, maybe we start out at 40 or 60 and work our way towards the middle.

Carrie: Yeah, it’s a balance.

Holly: And, you know, I think multiple mediation prep meetings can also be valuable, because sometimes there might be some new information you get from your client in that first meeting that you’re not ready to go to mediation yet without further investigating that piece. Maybe it means we need to get some statements from the other side. Or maybe it means we need to research another issue. But starting that process a little bit earlier can help be better prepared and more realistic, and all the things for mediation.

Carrie: Yep.

Holly: So you mentioned exchanging inventories a certain amount of time before you mediate. Typically, how long do you want to have exchanged, sworn inventories before a divorce mediation?

Carrie: So a lot of this is going to depend on the size of the estate, my client’s grasp of the estate, and just you know, ultimate goals about the estate. For a case where my client knows absolutely nothing about the estate, and I know that the other side is going to have all the information, I’m going to need that inventory and appraisement. I would say five to six weeks ahead of time, and then do a supplement closer to the mediation date.

Because I need to be able to look at it and say, okay, well, you know, okay, yes, this is good. We’re good to go. We got everything we need. But maybe you need to bring on an expert. Maybe you need to, you know, there are just different things that you don’t know, what you don’t know until you have that inventory and appraisement.

So I do not like it when it’s like, okay, we’ll exchange inventory appraisements the first time, like, two weeks before mediation. There’s not much I can do with that unless it’s just, I mean, there are some estates where that would be okay. Or if my client already knew.

If I already knew everything ahead of time because my client was the one who was managing the finances, then that might be okay. But for the most part, I would say five to six weeks ahead of time for the first exchange at least. And then a supplement closer, so you have more accurate numbers for the data mediation.

Holly: And I think especially if you have the person who is not in the know on the finances, what comes to mind is the stay-at-home mom who’s been really out of the loop for 15-20 years. Husband’s been making all the money. They probably have money, we don’t have any idea how much, but that stay-at-home mom is not going to be in a position to make a lot of money right out of the gates.

So sometimes we like to have now that we kind of know what’s there, we may want to loop in a financial advisor to work with the client and figure out, okay, you know, if you take the house, this is what that looks like. In that case, we may need to bring in a divorce mortgage specialist to say is that even a possibility under the circumstances?

But there are tax consequences to things, and we’re not talking about apples to apples when we’re talking about the house, retirement, and investment accounts, and cash. So a lot of clients that aren’t in the know on the finances might not really understand that. And we’re not financial experts, and so bringing in that outside financial advisor that can work with the client, help them figure out you’re going to need X amount of money to live every month.

And if you take more of these investments, it’s going to be better. Or, you know, whatever, whatever the case may be having that extra time with relatively full knowledge of the estate, I think can be valuable for putting clients in the best place at the end of the day.

Carrie: And I think that’s a piece that a lot of attorneys miss, like the apples-to-apples thing. How a certain amount of money and equity in a house is not the same as a certain amount of money in a 401k, and I’ve seen lots of offers and agreements that don’t necessarily take that into account for their clients. So that’s definitely a piece that we need to be aware of and educate ourselves, and bring in the help when we need it.

Holly: And I also like to try and get an idea in those early meetings about when we’re talking about from the property side, at least, what are the priorities and what do we think the other side’s priorities are? So if, you know, sometimes you have a client and they want that house, they love that house. They have lived in it for 15 years.

The kids have been raised there. They want the house. And you know, it may or may not be a realistic option, but if it is, then okay, how can we try and finagle things to try and get them the house. Or if we know, you know, the other side was a teacher, and they have TRS, and that, teachers and their TRS, that is, they are more protective of that than anything.

And so, how are we going to negotiate with that? And know, like we have a pretty good idea that that person’s primary goal is keeping their TRS. So, you know, I think that’s some good things to think about on the property side. But skipping back onto the custody side, which you kind of touched at to begin with, another thing I think a lot of lawyers skip in prepping for mediation is going through rights and duties in advance.

It’s very easy as an attorney to just be like, oh, we’re talking about conservatorship, and you both have the rights, and then you move on down the road. But what are those rights, and what are the important ones? And are you going to be able to agree on things.

You know, do we have one parent that’s team science and one parent that’s anti-vax? And if that’s the case, you’re not gonna be able to reconcile that and reach agreements on things. So figuring out where those pain points are for agreements in advance can really be helpful.

Carrie: If it’s a case where there are already temporary orders in place, those should be, you know, already in place, and the client should have at least somewhat of a grasp about what conservatorship is. Because people don’t know what that word means. And so I think it’s a good place. Start at the temporary orders and go through them.

I mean, hopefully you already talked about them at the temporary orders level, but go through them again. Okay, this is what the TOs say. Is this working? Is this not working? What do we want to do for a final? And make sure that you’re not just like, oh yeah, you’re JMC, okay, because those other rights and duties can make or break it sometimes.

Voiceover: This episode of The Texas Family Law Insiders podcast is sponsored by The Draper Law Firm. Providing family law appellate representation across Texas. For more information, visit draperfirm.com or call 469-715-6801.

Holly: Oftentimes, we’ll see there’s a party that vehemently wants the rights, but they aren’t actually going to use the rights. So getting an understanding of, okay, this guy wants to be joint managing conservator, and he wants to have the rights on paper. Is he actually going to take action with the school? Is he actually going to take the kids to the doctor? And sometimes the answer is yes, sometimes the answer is no.

But if you don’t know what that answer is, you can’t really give them guidance on, hey, if everybody has independent rights, if he’s not going to do anything with it, then he can do whatever he wants. Versus, oh, he’s going to, you know, call the doctor and mettle. Either we’re going to need agreements, or you’re going to have to be exclusive, or someone’s going to have to be exclusive.

Carrie: Yeah, you have to know which battles to pick.

Holly: So, a couple of other things to think about in advance. If we’re talking about the custody piece, you know, we have our standard possession holidays, but those don’t include a lot of holidays that are important to a lot of families that we deal with. So what are some things that you like to be sure you bring up with clients to make sure you’re hitting those?

Carrie: Well, I go through what the standard possession, the full SPO, actually is, with the holidays that are included, and then touch on the holidays that aren’t. A lot of people really care about Halloween. Some people don’t care about Easter. Some people do. There are obviously other religious holidays. So you need to know whether or not you need to include all that.

And then just talk to them and see what’s more important to them. Maybe look at a calendar. If you got somebody like, oh, I want every other Halloween. Well, let’s look at a calendar and see which Halloweens you would have under SPO or whatever, or not SPO already. And then maybe, you know, let’s figure that out and make educated choices about how we’re going to handle the holidays.

Holly: And I think you really want to be mindful of what religion your client is, because especially if they’re a different religion than you, it may not be on your radar that certain holidays are important to them. And so you want to be asking, what are the holidays that are important to you? When do you travel? When are kids staying home from school for holidays, or whatever the case may be?

Carrie: Yeah.

Holly: And you know, also thinking about the schedule. We always tell people the schedule will be, whatever you want it to be. If you’re going to agree, we can put whatever we want in an order. I think kind of explaining to them that we have the standard orders from the code, and we have other schedules that are common.

But there’s a reason why those are the normal schedules that people use. And when you start trying to get too creative, it can, it can cause some problems. So, thinking through these ideas. A good example.

Sometimes people get really possessive of Christmas, and they think, you know, my kid is three years old, and I have to be involved every single Christmas, so we’re gonna split half the day. Or somebody’s gonna have Christmas Eve and sometimes have Christmas Day. Like, well, 10 years from now, nobody’s gonna be able to travel.

Carrie: Yep, you’re remarried and your husband wants to go on a ski trip with his family. You can’t go. Yeah.

Holly: So, and if you know, you get the standard Christmas schedule, but everybody’s in agreement that, hey, this year, everybody’s in town, let’s do this. You can always do that, assuming everyone’s getting along, and you can agree. But if not, celebrate Christmas on a different day. Your three-year-old doesn’t know the difference.

Carrie: Yep.

Holly: Okay, so one other issue that has come up recently in a couple of cases that we have had, and I know I’ve seen other family lawyers sharing about this in Texas Family Lawyers and stuff like that, are the weird schedules some schools are coming out with. There’s a district close to us, Gunter ISD, and their schedule I saw the other day. I’ve never seen anything like it.

Is it a four-day day week? Sometimes, is it a five-day week? Sometimes. Is there any rhyme or reason to when it’s four days and when it’s five days? Not as far as I can tell. And sometimes the Fridays off are listed as holidays, and sometimes they’re not. And you may have somebody that doesn’t live there now, but moves there, and what is that going to do to your standard possession order?

So I don’t know what the answer is on that, and I know there are also districts that do have four-day school weeks. If you know you’re in one of those districts, you absolutely need to figure out how that is going to impact your schedule and plan for it. If you’re not, you may want to be thinking about, is there something we should add in here to protect in case our school does go to four day, or in case somebody moves and our kid ends up there.

Carrie: Yeah, because the SPO is not built for that. So either school districts need to quit or SPO need just needs to catch up, but yeah.

Holly: And in the meantime, we’re the ones who have to try and figure it out and help these people get through. So then there’s also a factor, things like sober link, that we want to think about. You know, if your case has unique issues, now is your chance to get them in.

If you think somebody’s got an alcohol problem, and if you’re going to court, you don’t trust this person to be around your kid without drinking, and you agree to an order in mediation that does not have safeguards, you’re not gonna be able to go back to court and pull up the DUI or whatever. So you got to really think about what you’re going to push for in mediation.

Carrie: Yep.

Holly: So another thing that our firm always really tries to do, that I find a lot of firms don’t, is getting a mediator information in advance. So I just think it saves so much time if the mediator already has a really good idea of the facts of the case. What are the pain points? How are these, what are we dealing with here? What do you like to send to a mediator in advance?

Carrie: So a lot of mediators have their own forms that they want you to fill out, and that’s, I mean, I try to do those. Try to do their forms that way they know where to look for what information, if it’s on their own form. We also do like a position paper, I guess. It’s the statement. But hey, like this is a little bit about the family, about the people, about the kids.

These are some things that I think might be sticking points. Here’s a little history about what’s happened while the case is pending that may be helpful for you to be aware of and send that to the mediator ahead of time. Ideally, a couple of days usually ends up being like the day before, but still, and the mediators like that.

And I don’t think I’ve ever had a mediator say, oh yeah, I didn’t, I, actually, I have had one mediator say that. But usually they, you know, they read it ahead of time, and they’re appreciative, and they like it. And it’s something I didn’t used to do, um, until the last couple of years.

And I think it definitely helps just mediation start off smoother. And that way the mediator doesn’t have to spend the first 30 minutes in each room, okay, well, what sports does Suzy play, or whatever? Just getting to know, getting to know the people.

Holly: There is nothing that annoys me more than when we have prepared all the things for a mediator and we show up to mediation and the mediator hasn’t read it. That is a good way for a mediator to get stricken from the mediation list. So any mediators out there who happen to be listening, you know, people take the time to do it. You should probably read it in advance.

Carrie: Yeah, it can’t take that long to read it. I mean, it definitely took me longer to write it.

Holly Draper: And sometimes, I mean, I can recall, recall a case where the mediator hadn’t read it in advance, and I was like, go read what we sent you, because that is going to give you the information that you need, and it’s going to be quicker for you to read that then for us to sit in here and chit chat for an hour trying to cover all these points.

The mediation spreadsheet. I think this is one of the pieces where everybody does it a different way. Mediators, sometimes they have their own, sometimes both sides, you know, we’ve seen mediators who will say, you got your spreadsheet, they have their spreadsheet, and they’re trying to work off of both. What do you like to do with a spreadsheet?

Carrie: Well, I’m very fond of our spreadsheet, so I like to use our spreadsheet. The feedback I’ve gotten from mediators and judges on it is that it’s great. I know that the formulas are correct when it’s my spreadsheet. I don’t know if I’m using somebody else’s spreadsheet. I do warn clients sometimes that I know that, you know, there might be a little bit of a contest about which spreadsheet we’re going to use.

I think what can be helpful is if you work off the same spreadsheet, but you add a column for the various offers. That way, it’s easy, all on one page, so you’re not manipulating the numbers every single time.

You’re just kind of transferring them over to the next column. Like, okay, we got wife’s first offer, husband’s first counter, wife’s first response, and however you want to go, however many there are. But that can be helpful. So it’s all in the same thing. I would just check formulas. Every time you get that spreadsheet back.

Double check your formulas, because inadvertently, I’m not saying that, you know, maybe some opposing counsel might change it on purpose, but it’s just easy for those to get messed up when you’re sending it back and forth, back and forth. But I like our spreadsheet, so I do try to get people to use it when I can.

Holly: And I always want, the very first thing in the morning of mediation, I want that client is showing me screenshots of any accounts that are always changing. You know, the checking account that can, over the course of a month, go from $30,000 to $200, just depending on where you are in the monthly cycle. You want to make sure that you have the most up-to-date.

I mean, the value of the house, that’s not going to change. But for those accounts that are fluctuating constantly, I want to know from my client what is it worth today? And I want to know from the other side, what is it worth today or yesterday? And that’s probably fine too. But you know, really recent if, especially if we had inventories even a week or two out, it can have changed significantly in that amount of time.

Carrie: Right.

Holly: So we’re just about out of time. But what do you think is the most important advice you would give to family lawyers about how to be successful with your mediation preparation?

Carrie: I think the biggest piece of it is thinking about it ahead of time. You can do that lots of different ways, but it seems like a lot of times attorneys don’t even think about mediation until they’re there and they haven’t prepared with their client. They haven’t prepared themselves. And so I think, however that looks for you, you need to put ticklers on your calendar to be looking at things before the day of mediation.

Holly: What are some triggers for you that are going to cause you to cancel or reschedule a mediation?

Carrie: Their refusal to turn over needed documents. That’s just not going to work. I can’t mediate if I don’t know what the statements are, what the accounts are, if there’s been, I mean, sometimes people move things around that shouldn’t have been moved around, and you need to be able to trace that out and make sure that everything is, you know, accounted for that should be accounted for.

So that’s probably the, when I’ve canceled mediation, it’s probably been because of statements and refusal to turn over information. Or if there’s, like, a big thing that happened with a kid right before scheduled mediation, like, if a kid has some type of huge mental health crisis, or, like, a huge injury. If somebody’s injured, you know, like a child, that impacts how you’re going to be able to settle the case. And so things like that would be reasons.

Holly: If CPS shows up at somebody’s doorstep.

Carrie: If you’re in the middle of something like that, you can’t, you don’t know how it’s going to turn out.

Holly: Yeah. do think it’s important to be mindful, and this is something we calendar right when we set in mediation. What is the deadline to cancel? What are the fees associated with canceling within, you know, a week or two weeks, or whatever that particular mediator’s policy is. Because they all have your own policies, and all have different fees.

And, you know, sometimes it’s worth it to pay a fee and cancel, but sometimes, you know, if we’re like, I don’t have these documents, or they didn’t do their inventory yet, we have a deadline of, if we don’t have the inventory by Thursday, we’re canceling mediation because there’s no cost. Or we’re postponing mediation and resetting it because we don’t want to mediate until we have that inventory.

Carrie: Right. And sometimes they’ll say, oh, well, let’s just go. We’ll do the kiddo issues. I’m like, but the kiddo issues can sometimes be impacted by those financials. And I’m not saying that they’re, I know they’re separate things, but if you want to see the financials, to see if there’s lots of liquor store charges or things like that, that can impact the kiddo piece also. So I’m not a fan of partials or two mediations. Let’s just do it all at once.

Holly: And I do think there are certain times when this case is not gonna settle if we try to settle it all at once.

Carrie: Sure.

Holly: And so you just have to, kind of know all the parties know the case. What can we do to try and get this resolved and get people going on with their lives in the best possible way?

Carrie: Yep.

Holly: All right, well, that pretty much sums up prepping for mediation. Thanks so much for hopping on with me. Hopefully that’s helpful for the family lawyers out there. If you enjoyed this episode, please take a minute to subscribe and leave us a review. We would love to have you listening in the future.

Voiceover: The 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.