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Episode 25 - Is Mediation Right for You?

 

Episode 25 - Is Mediation Right for You?

Welcome to the top Texas Lawyers podcast. This podcast is brought to you by the law firm Abercrombie and Sanchez PLLC.

Your hosts are Bryan Abercrombie and Samuel Sanchez. Bryan has been practicing law for 18 years and his board certified that sort of legal specialization in the area of family law. Sam has been practicing for 13 years, is licensed in both Texas and Florida, and is a certified mediator. This podcast is for informational purposes only and all views are the opinion of the hosts. It's not designed to provide legal advice for your particular legal matter, and it should not replace the advice of competent counsel. Welcome. And we hope you enjoy the top Texas Lawyers podcast.

Good morning and welcome to 2021 of the top Texas Players podcast. Bringing them back to you in style.

I love it. Love it. Still live in that area. Brothers still live in that area.

A little bit of Whitesnake. Yeah, Tawny can't go wrong. They are hair-blowing teenagers.

Those were the days, my friend. Anyway, welcome to another year of congratulations are in order right here. How was your Christmas, my friend?

It was good. Good, a great holiday. I was able to convince my fiancé to be a blushing bride, so that was pretty awesome.

Congratulations, that's awesome! And she's obviously a fantastic person, as are you. And so, you know, I wish you many years of happiness and I couldn't be more happy for you.

Well, thank you, brother. I appreciate that. Other than that, rather just like eating well, packing on the pounds, doing a little.

We all are unfortunately getting wider, not taller, unfortunately.

You know, I'm going to get those expanded britches and those collar expanders and I can still have the chance.

I've started on the new eating plan, so I'm trying to cut off some of those COVID pounds and the oatmeal has never tasted better.

Well, you know, it's a new year new gear, right? Everybody's going to have some resolutions. Everybody wants to start it off in a much better way in 2021.

So, yes, yes, I can still taste the oatmeal right now. Anyway, that's neither here nor there. But let's talk a little bit about the celebrity divorces.

There's been a few obviously, we've touched on a number of them over the past year, but been some stuff on the B-list. It looks like it looks like, you know, not that I know you're going to find this is an incredible shock, but Bachelor Nation was rocked when Evan and Charlie Bass decided to divorce. They've got two small children.

It's shocking to me that people who meet on a television reality show, you know, end up getting divorced. I mean, but you right. I mean, especially because they're so well vetted. You know, after you go through 30 women, you figure like you've kind of narrowed it down. It's going to be good.

So but in all fairness to this couple, they seem like a sweet couple. And, you know, they seem like they they they had it going to be going on.

And I think they met on one of the ancillary bachelor shows. I'm not sure which one Bachelor in Paradise, I think, or something like that. And, you know, so it's it's always sad when when when the couple breaks up. But I am I got a quote recently, Julianne Hough and Chuck Wick split up. And my favorite thing about this one was the quote by Chuck when he says the shit hit the fan before they broke up.

Thank you, Captain Obvious. Clearly, it's a bad day because otherwise. Yeah, yeah.

She's a high stepper. You know, I'm sure it was hard to keep time with her stepson. He's like, yeah, you got they got crazy.

And then the Kelly Clarkson divorce kind of just gets crazier and crazier. They're talking allegations of fraud now and all kinds of litigation going on there. That's going to be probably years and millions of dollars in litigation, if I had to guess.

Oh, absolutely. And really that what we're going to talk about today, I think, Bryan, is, you know, everybody in this in this new COVID era is trying to figure out how one to get into court because it has the lines backed up not only to get vaccinated, but also to get into the courtroom of any number of cases. I mean, you're everything from your your parking ticket to your to your divorce, to your civil case, your criminal case.

They're all absolutely all of them are back up. And so people really started to look at and explore and has become much more in vogue, I think in the season is mediation. And we're going to kind of touch on that process, which I think is a great topic to kick off the new year for people to kind of hear about and consider as they go forward in whatever mediation.

And, you know, we practice down here in Houston. And then the Woodland's mediation is that is required. It's required in almost every case and almost every court before you go to a temporary orders hearing or before you go to a final trial. I mean, the courts really, really want you trying to do your best to resolve these things outside of outside of the courtroom. And oftentimes, especially when your parents or even just trying to resolve a property case, I think mediation is helpful because it can it can really save the dollars and it could really save the heartache. And, you know, in the end, just the acrimony and fighting that goes on. If you end up a court battle, yeah, it's substantially less expensive, too.

I mean, when I was trying to tell clients, when you're considering whether it's civil litigation and we're talking family law, we're talking even even in probate cases, is the fact that you go in with the ability, one, to play outside the parameters of the type box the law creates for the courtroom?

New judges are very tied to what can and can't happen under the parameters of evidence. Those rules are extremely complicated and difficult sometimes to get in things, they also are very limited by the results they can give you. The law is very clear in most cases about what can or can't happen in the courtroom at the conclusion of a case.

And so when you look at mediation, you can be extremely flexible and creative in solutions for both parties, whether you're a big insurance company or just a husband and wife trying to figure out what we're going to do with our stuff. So it's a really great option to consider, as you want to try to figure out how do we address the legal issues that are in front of us in the case?

Right. Because I mean, you're obviously like my old boss. You say you're one of the two leading experts on your case in your life. So it allows you to get somewhere where you possibly could get everything resolved without having a lengthy and expensive court battle. And it allows you to have come up with a creative solution, make US courts, courts typically have a kind of a defined box where they want to try to keep stuff, because this is a lot of courts are like this is what the legislature has told me that I could where I could decide a case and I'm going to try to stay in that box as much as possible. Sometimes they don't. But in most instances, you and I both know that they probably are, at least to a large extent. So, you know, mediation allows you if you have a unique relationship like Lonza, a fighter pilot, and the other one's a fireman or, you know, I have I had a case one time, but one was a pilot and the other one was an EMT and their schedules were never going to mesh. So we had to come up with a creative solution so that they both had good co parenting time. So, I mean, it's a way to be creative as.

No, absolutely, and the cool part about mediation is I think a lot of people think that mediation is really only something that can be a complete resolution of a case.

And that's not true. Just like you said. You now, obviously, Florida is a little different. They still use mediation, usually in advance of final trial, but they do have a requirement in some courts to attend mediation and a temporary order series. But, you know, the cool part about it is you can settle party issues and you really kind of narrows things. So let's say as you're going into litigation for whatever the case is and there's 10 issues that are at play in your matter, you may be able to settle 8 of the 10. So going to trial on the remaining two is substantially one less expensive and more targeted. You're able to really kind of narrow the issues for both the judge and your client on the opposing side as to what's going on instead of having to really because, you know, I would love to tell clients that, you know, when you get to court, it's like TV. You get as much time as you want. You know, judges are like, you know, I've got like the next two weeks open. Why don't you just go ahead and tell me everything that's going on in your life. But you and I know that that's not true in most of the time. Very little snapshot of that judge.

If you need one day, you're going to get three hours.

Exactly

What if you need a week? You're going to get three days. That's that's how it works.

Exactly. And it's never enough time to tell the whole story. So it's much better if you can narrow those issues in mediation, whatever stage you're going into, and if you just so happen to be able to work out the whole thing.

Well, fantastic.

You didn't go to that huge, expensive trial that you and I both know can go up into the hundreds of thousands of dollars at the and the like I said, it allows you I mean, even the simplest thing with mediation is that allows you to be part of the solution. So you're less likely to go back to court for a modification if you were part of the original discussion and the original decision and you have some stake in the outcome. I mean, that's one thing that I can't stress enough to clients. If you if you have some say so, a judge can hand down a ruling. Judge is never going to know you. Judge is never going to know your kids. Judge is never going to never going to tuck your kids in at night. The judge is never going to know anything about you, really, other than what they hear in that short window of time that they get that you get in front of them. So, you know, ah, isn't it actually better off coming to a decision? You know, your kids, you know your life, your property, you know everything about yourself typically. And aren't you the one a better person to make that decision? And I've always told clients, yeah, you get an outcome, you get a stake in the outcome, you get some skin in the game and you have some excuse me, rich couples are less likely to go back to court numerous times if they if they have a stake in the outcome and if they've worked hard and come to a resolution of it and mediations that have lasted two days. I've been in negotiations that have lasted twenty five minutes. So so, you know, it's worth a shot. And most courts are going to make you take the shot. And like I said, put your best foot forward.

And I agree wholeheartedly, the other piece of that, too, is I think, you know, what we usually talk to clients about is making the selection of a mediator becomes critical to really understanding the issues that are at play in your case, because every mediator kind of approaches cases in a different fashion.

Right. We've all got our own style, whether it's that we're going to approach it in a very direct fashion, whether we're very flexible, how we're used to dealing with very difficult individuals, how how we maneuver individuals closer to the middle to try to reach a settlement and knowing and understanding who your mediator is. And they're kind of like their skill set is really important. As a litigator, you and I both know, Bryan, that a lot of time is spent before we make an election about who we're going to go mediate with. And I think that's an important part that every client, every person who's considering mediation should contemplate. Talk to your lawyer counsel and say, hey, why are you suggesting these three mediators as potential options? Or if you see it from the other side, do we really need to kind of do a little background, if you don't know, to just figure out, like, what is their style and does it mesh with me because that can really affect them?

I think oftentimes you want to have a mediator who's skilled and family law because they're going to know the courts are going to know the judges. They're going to know how the process works. I mean, there's a lot of mediators out there. There's hell there's a lot of mediators out there that didn't even go to law school. And I always think that kind of just I don't know if this personal bias, but I've also I've never had a lot of luck with mediators that are not lawyers, number one. And number two, don't know a lot about family law because it's just it's just it's own its own world and then you just don't ever do. Well, in my opinion, when you have a mediator that doesn't know a lot about family law or doesn't have the practice in the area of divorce work.

Oh, without a doubt, because you get you get lost in the weeds right in a lot. If you don't control the process as a mediator, as a certified mediator myself, I would tell you that if you don't control the process, if you don't control the conversation, everybody can get tied up on issues that are really not important or issues that don't really ultimately decide the meaty issues that need to be determined at mediation. If you're going to get hung up on whether or not somebody has Grandma's pictures when you're trying to divide a two point five million dollar estate, emotional issues like that can derail something that you could possibly have reached an agreement on. That was the financial pieces of it. And that doesn't mean the grandma's pictures aren't important. They are they need to really kind of prioritize the issues, because once you resolve big issues, a lot of times the smaller issues will very easily kind of resolve because people have moved more towards the other side, giving, taking, you know, making a good compromise for a good solution.

Yeah. And I would also say that. A mediation kind of how the process works as you go into mediation, let's talk about a general civil civil litigation type of mediation in civil litigation. You're dealing with a breach of contract issue and you're dealing with a workplace injury or an auto accident. And a lot of times they'll have a joint caucus or both parties sit in the same room around the same conference table, and each side kind of states their position. And then each side goes into a separate room and then they have the mediation and try to get because a lot of times if we're dealing with the business dispute and you're dealing with less emotional issues, I can tell you that in the family law mediation, the two parties probably never need to see each other during the day. One party goes to their room, the other party goes to their there. Every time I've ever had a joint caucus session in a mediation and a family law case, it is derailed the mediation by at least half a day because like you, to your point before, everything always goes to kind of the emotional zone as opposed to the settlement. So everything immediately goes to the emotional zone because these two people are getting a divorce. So when you hit the emotional zone, you know, you're talking about grandma pictures or who who broke the law, who broke the car or who never listens to who and and all that kind of stuff. So that's why you don't want to have. You've got to kind of change the rules. And I apologize if you hear the pitter patter of little feet that kids hear the absence of tomorrow when school starts back up, the duties of the holidays.

And that's that's that's what makes it great. I love the pitter patter of little feet, so you'll miss it when they're gone.

But but yeah. So we have the kids running around and all kinds of calamities like Thunderdome going around here as well.

And I would tell you, Bryan, like something to keep in mind, too, about mediation, as if clients and individuals are contemplating it, is really look at what's in front of you time frame wise, because I think a lot of part that can really put a lot of pressure on people is that they try to push mediation, too, way too late in their case, because what ends up happening is, one, you've had a tremendous amount of expense, which sometimes is absolutely necessary. You have a larger, complicated estate or issues that are presented, and you need to have a lot of information so that you can make a proper settlement.

But if you don't, then don't push it off to the very end where you feel like, hey, I have to make a deal or I have to go to trial. Because if you do that, what you're going to end up doing is a lot of times rushing the deal and then you come out and you feel like you had an opportunity to really make a conscious decision at mediation because you felt like it was the only thing that was available to you.

So really kind of plan it out in your case. Do it. We call it our litigation, our litigation strategy, Bryan, and I'll sit down and really kind of map out a case and say, hey, from inception, the issues that we play, these are the pieces of information that we're going to want or need in order to properly assess what the best result is at mediation for a client, because we want to get them in that good delta where they feel good. You're not going to get everything that you want if you did that.

Phenomenal. But most mediations don't work out that way. Everybody wants out a little a little pissed off.

And in real life, you're probably going to walk out a little upset. But it's something you can live with. If that happens on both sides of the table, then it's probably a fair settlement. That's what they always say.

Yeah, but yeah, I mean, you kind of have to wait until the vine gets right with the fruit, right. In order to get get the mediation accomplished because it's too early, it'll fail too late, it'll fail. And you want to get right there in that kind of that right in that time frame work if you're going to get that settlement and you know, the big piece of it to clients, always ask me when we go to mediation, what if they want to crawfish on the deal?

Well, that's a great part of mediation, is that when you go to mediation, at least, you know, depending on where you're at, it's usually irrevocable and binding, meaning somebody can't wake up the next day and say, hey, I want a crawfish and I don't like the deal and it's off. And that's not the way it works. It's done, which is a great feeling in litigation to know that, hey, if we make a deal today, it's done other than the ancillary things that may have to come after final review of the drafted order or some ancillary documents. But that's a big piece to know that it's over.

Right. And you can move on with your life and start making plans and all of that kind of stuff. And like I said, it provides a lot of peace because, you know, sometimes there are some difficult things said in a mediation session, but they're not said to your face. And it allows especially to parents, it allows them to try to work together going forward so that they're not constantly at each other's throats. And sometimes that mediation helps that process where they can actually create kind of carve out a relationship where both parents can kind of be the parents instead of harboring on. Well, she said in court that I was a deadbeat dad. And he said he said I was sleeping with half the country club. All that all that kind of stuff just leaves a lingering. Just leaves a lingering scar on a marriage that you just can't ever get rid of. Whereas in the mediation, if you're just telling the mediator that the mediator is going to kind of selectively tell what the other room, you know, what's going on, so you're allowed to vent a little bit to the mediator. In most cases, most good mediators will let you kind of have have a little bit of venting and then kind of get that stuff off your chest. But it doesn't necessarily have to be said to the other side and then it allows you to kind of move forward with that other person. Because let's face it, if you have kids together, you're going to have a relationship with the other person no matter what happens.

You know, that's true. Want a big piece of it to sort of like along those same terms? The cool part about mediation is, let's say people always want to know what can I can I say in mediation?

It's not trial. And so mediators, you have that level of confidentiality on both sides, meaning that you can disclose all kinds of information at mediation that can't be used if the mediation were to fail and going forward, a trial.

And that's a huge advantage as a mediator, nothing that's the mediator can never be called as a witness. The mediator, nothing. The mediator is nothing that's revealed to the mediator the mediator could use in the other room unless unless you give the mediator express permission to tell the other side what you have. So there's a lot of good. But the mediator who typically is a lawyer is going to be able to evaluate the evidence and say, yeah, that's that's that's a piece of evidence that that's pretty damaging. So we're going to have to address that. But or or not. So, yeah, that's that's that's a crucial piece. This confidentiality of the process and the informants in the process are to really, really helpful things that that allow you to do a lot of different things to help, you know for sure.

Couldn't agree more. I think more and more, you know, not just high profile. It used to be just high profile divorces. High wealth divorces were used in mediation.

But now it's really any kind of case, you know, whether you just or we were just married. We don't have a lot of property. We don't have children. We want to get this resolved very quickly or we have 10 million dollar estates and six kids in property all over the state and businesses and stock. Either way, mediation is an extremely powerful and useful tool that I would encourage everybody to consider and contemplate in the process.

So, yeah, so all along those same lines, we got to a couple of things to talk about. A couple of additional things to talk about. One is an announcement of where we're going as a firm and the other is just just as some helpful tidbits. Let's start out with the helpful tidbits.

Many, many, obviously, many practitioners know many lawyers know that the the Supreme Court of Texas has changed many, many of the civil discovery rules starting on January the 1st of this year. So there is to say that little changes are little is not doing this. There are there are monumental changes. And there they're the kind of changes that, you know, if you don't know what you're doing, they'll get you hurt. But what what?

Without going into a lot of nuance, detail about the above, about boring everybody with, you know, code sections and different things like that and that stuff for lawyers to know, but not necessarily for the layperson. But but basically it requires a lot more disclosure up front of property assets.

You have to when you meet with your divorce attorney, you're going to have to probably come up very, very quickly with tax returns, deeds, bank account information, retirement account information. That's all going to be stuff that's exchanged on the front side of of a divorce case now, as opposed to the old days when you do formal discovery and exchange inventories and different things like that, a lot of that information is going to now be done on the front side. You're going to be disclosing a lot more information on the front side. So when you meet with your divorce attorney, whoever that person is, be ready that you're going to get a lot of that. A lot of questions asked you on the front side, on the plus side of that, as it may help get some of these cases resolved faster. But the downside of it is, hey, what do I get? Because I don't know what I don't even necessarily know what all my issues are. So what all do I need to provide? But generally speaking, it's going to be about two years worth of bank statements, statements from any financial institution, deeds, retirement information, two years of tax returns, pay stubs and for insurance information. That's going to be like the stuff you're going to know you're going to need on the outset. So I would say if you're contemplating meeting with a divorce attorney, I would say start getting that stuff within arm's reach or you start getting a plan together about getting that stuff together because it is going to become relevant. Now, cases that were filed before the end of the year or under the old discovery rules, but cases now filed in twenty, twenty one or all under the new system.

Yeah, and that's really important because obviously you and I will do as trial attorneys if you don't disclose it, a lot of times it can cause you later on in the case if it's going to be litigated to have substantial problems in whether or not someone could actually use it.

That's one of the penalties. If you don't disclose it, you can't use it. That's you know, that's that's that's a pretty pretty substantial, substantial new penalty that that's going to be on these things. So it's one of those things that you really need to sit down with your attorney and go over and make sure you have all the stuff, all the issues out on the table, because it's going to help you. It's going to help your attorney. I mean, that's just helpful advice. If you're going through a divorce and you want to get the most bang for your buck if you want to go at it and get all that information with.

And these are tremendously helpful anyways, I mean, like we're talking about mediation, so these rules really play to what we were kind of talking about earlier in the podcast, which is that having to get all that information so that you can be prepared to actually make a solid deal is important.

So it is beneficial to the mediation process as well, because getting all these documents, getting those disclosures is going to help you hopefully be able to advance the case a little faster. And we still have the cooling period in Texas. You still got that 60-day waiting period. But if you can get everything very quickly changed into mediation, you can tell me I'm wrong here.

I'm in the old days. I mean, in the old days. By my old days, I mean like 2019 or 2020. And no, I mean, trying to resolve a case and I'm a very first mediation is a lot like playing no limit Texas Hold'em because you don't and you haven't done discovery yet. You don't know what cards the other side's hold. So you're holding your deck of cards or your your five cards and you're you're trying to you know, some of the stuff is out on the table there, but you don't know what the other side has completely. And you're trying to cut a deal with, you know, sometimes three quarters of the information, half the information. You know, it's it's a lot like a high stakes poker game, unfortunately. So this this is going to eliminate a lot of that, I think. And so I think there are some some parts that I kind of disagree with with with it.

But, you know, obviously I don't have the final say, but I'll get you on the Supreme Court soon enough. Right.

There are some things on there that I feel are going to be very, very, very helpful. And they're going to help cut down on a lot of the acrimony and then also help get some of these cases to fall faster. So overall, I think they're probably a good thing and they probably are long overdue because I know in federal court a lot of times there's initial disclosures that are required that parties have to do so. I think the initial disclosures now are probably. I probably long overdue in these cases now, so hopefully to move forward, I guess we'll see.

Time will tell.

All right. So the other exciting bit of information. I'll let you. I'll let you hear that.

Yes. So as a firm, we decided that we're going to go ahead and start doing conducting mediations for parties. So both Bryan and I, obviously Bryan's board certified certified mediator, we've been in family law for a tremendous amount of time, decades together.

And so we're going to launch that as a firm that service. So if you're considering or contemplating mediation and you have a case, we'd be happy to assist you to reach out to our offices and schedule, see what data availability we have. And we'd be happy to assist you in trying to mediate your case.

Yeah, we're on the Instagram. We're on the Facebook. We're on we're online at astxlegal.com, we have we're having a landing page. It may be set up now. I think it's pretty close to the Internet where you can look at our mediation date and when we're available to do mediation. But we'd be happy to help you try to solve your solve your your family law case and get you some kind of a workable solution.

But, Sam, it has been decades we've been working together, hasn't officially been officially decades of.

No, we've been we've been together a long time. And, you know, we know a thing or two about like on the farmers commercial. We've known a thing or two because we've seen a thing or two. We know a thing or two because we've seen a thing or two. Right. But no, we in just about every type of case in family law that you can think of from high stakes custody, the high stakes property to low stakes, low stakes, everything to no attorneys mediation. So we can we can help you and we feel we wouldn't put this out there if we didn't feel very strongly that we could we could provide some kind of positive benefit for people going through this process, because divorces are a hellish process and it's it's emotionally taxing. You put on weight, you lose weight, you lose sleep, you have breakdowns. I mean, it's a tough obviously when your family is breaking up, it's a tough it's a tough thing to go through. And we like as much as we possibly can. We like to try to help people get.

Without doubt, we'll also be looking forward to seeing us in other markets as well, will be opening offices in the Waco area. We'll also be opening offices in North Austin, Round Rock. So we'll have some different areas that will be able to come and assist individuals who might need our assistance as well instead of your head and head and up to the north side, aren't you?

I am. I am.

So the Fort Worth office is going to move to a little bit more of the North Metroplex area, will have the availability of help and people obviously in the central downtown Fort Worth area.

But we are our main office is going to relocate to the north Fort Worth of Heritage Trace. Just kind of a great area that we're going to be in. And we look forward to kind of helping that community as well.

And and also in Denton County, we can help in Denton County as well. That allows us that in Wise County, Tarrant County, that helps us get out of county.

There's a lot of highway there. So we'll be able to kind of get to wherever we need.

And in Houston, we're obviously still available all over Houston. So we'll happy to be happy to look at your cases and have to look at you have to talk to you about whatever you got going on. So how do they get a hold of yourself so you can hit me up?

Obviously, our website, you can contact me. The email is ssanchez@astxlegal.com.

Call me directly at our office, which is 817-914-5470 or the direct office number as well. We get you that it's 469-844-7181. That's our main number.

We also have an 800 number for across the state of Texas, and that is 888-981-7509.

And for me, my my email is the babercrombie@astxlegal.com.  That obviously you can still you can always contact us. They are websites that astxelgal.com. My phone number is 281-374-4741, and I'm in The Woodlands so I'm pretty easy to reach as well. And if you can't reach Sam, you can always reach me. And if you can't reach me, you can always reach him.

But Butch Cassidy and the Sundance Kid practice all over.  If you get one of us, you get the other one.

All right. And so it's great to talk to you. Congratulations again!

We're going to we're going to have a you know, we're going to be doing this podcast a little bit more regularly on a weekly basis going forward next week. We're probably going to talk about cases, divorce cases, dealing with children with special needs. And we're working on line it up.

But I think we might have a special guest for us and end up on this sub on this next podcast.

You can talk specifically about having a child with special needs and kind of what that entails and how difficult it is, because that's a factor that comes up in a lot of men. Just the stress alone of having a child that has special needs can can lead to, unfortunately, the downfall of many marriages and them learning how to cope. And what that person is also a trick in and of itself, because special needs cases are unfortunately a more of a more of a prevalent thing in our society, which, you know, you can if there is life after a divorce with a special needs child that can be workable and can be a workable relationship. But you better know what you're getting into on the front side.

I agree. Looks for a great topic. So.

All right. Me, we'll have a great rest of your week and thanks for the time. All right. Best to everybody. So you guys. All right, take care.

Thank you for listening, and we hope you enjoyed the Top Texas Lawyers Podcast. If you'd like to schedule a consultation with either Bryan or Sam, please call 1-888-981-7509. Or visit us on the web at astxlegal.com. Once again, that's astxlegal.com. Thank you very much.

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