Why Does Mediation Work?

Mediation is encouraged/required in most family law cases filed in Tarrant County, Texas.  Courts want to have hearings only when necessary, and they know that mediation settles almost every case where it is used.  There are certainly some cases where nothing will help the parties to agree, but all experienced attorneys have mediated cases that reached agreements where it seemed like there was no chance ahead of time.  Mediation sometimes almost feels magical in its ability to help parties come to agreements.

Here's a non-magical explanation of why mediation works.

1.  There's a focus on problem-solving.  When mediation is scheduled, the goal is usually to reach a final agreement on a divorce or on a modification order relating to children's issues.  Sometimes, mediation is used on other issues or at different stages in disputes, but most commonly, the goal becomes to reach a final resolution.  In contrast, much of litigation is about investigation, making temporary arrangements, dealing with discovery disputes and other interim issues.  When you show up for mediation, everyone knows it's time to get down to business.

2.  A specially-trained neutral person helps both parties.  Judges are neutral, but they have a different job.  They listen to evidence and arguments and then make a decision which the parties must live with.  In mediation, the mediator does not impose any decisions.  The mediator keeps the parties talking and considering alternatives until the parties themselves reach an agreement about how they want things done.  The mediator helps the parties come to the agreement.  The mediator has been trained in communication skills to be able to listen better, ask questions and be supportive as the parties think and work through the issues.

3.  Each party gets heard.  This is a huge benefit of mediation.  Even though each side theoretically can testify and present evidence in court, there is no free flow of communication.  Rules of evidence and procedure constrict the flow of information.  Those rules are necessary for court, but they don't feel good to the parties who want their say in court.  In mediation, the mediator will listen to both parties and give them plenty of time to express what they want to convey.

4.  The process is safe and private.  Many people aren't happy about having to testify, or to be testified about, in open court.  They don't want their private lives exposed in public.  Court hearings are open to the public.  Mediations are not.  In Texas, the parties most often work in the "caucus" style, meaning that each party remains in a separate room and they normally don't see or hear the other party directly during the mediation.  The mediator goes back and forth, carrying information, offers and responses.  Most people seem to appreciate not having to confront the other party in the stressful situation of mediation.

5.  There's an end in sight.  Mediation almost always works.  When there is an agreement, the mediator prepares a written agreement which is signed by both parties and their attorneys.  The agreement is very detailed and always contains the magic words that the agreement is binding and irrevocable.  With that, judges will uphold and enforce the agreement.  The parties need to make sure they are satisfied with the agreement, because it will be binding once everyone signs.  After that, there's no backing out.

In the ordinary case, magic isn't required.  Mediation provides a safe, controlled, private forum where each party gets to be heard by a neutral third party.  Some people feel validated and some just need to let off steam.  Whatever is needed can usually be provided in the mediation process.

Should You Try Mediation?

Simple answer:  Yes!  

Here are some reasons why you should plan on using mediation:

• Judges almost always require it, at least in Tarrant County, Texas divorces.  If you can't quickly get your case settled otherwise, your Judge will almost always order the parties to go to mediation prior to trial.

• The process works.  In my experience, it seems to work about 80-90% of the time.  Even in the cases where we don't end the session with an agreement, the parties almost always come to an agreement shortly afterwards on their own.  In most cases, if there's no final agreement, at least some issues get disposed of or at least narrowed.  That will save time if you ever go to court.

• Mediation is good for the parties.  It's a private and confidential process.  Negotiations take place away from the courthouse and information is not so publicly exposed as it would be in a trial.  It's also good because it brings an end to the legal dispute and the parties get to be the ones deciding how it is resolved.  It's also usually cheaper than preparing for, and going to, trial.

• Mediation is often better than the alternative.  Sometimes, clients fear testifying in court, so mediation sessions become very appealing.  Sometimes, clients just don't make good witnesses, or they may be unsympathetic people, or  they may have some bad history they don't want brought out.  Sometimes, clients run out of money and can't afford to get experts, and pay for the preparation for trial.  For all those people, mediation is a safer alternative.

• The result of a successful mediation is an enforceable agreement.  Courts are unanimous in supporting and enforcing properly signed and prepared  mediation settlement agreements.  You don't have to worry about someone changing their mind.  CAVEAT:  Be sure you understand and agree to everything, exactly as written, before you sign off on the mediation agreement.

Don't Write on Original Documents!

One of the best, appropriately brief  posts I have seen in a while comes from Mark Chinn's blog from April 30, 2012. Mark is an outstanding Family Law attorney in Jackson, MS and has been producing a very nice blog on Family Law issues.  It has excellent advice for something that comes up once in a while.

Sometimes, while preparing a case, it becomes important for a client to bring a document to the lawyer to help prove a point.  Documents include tax returns, various applications, certificates, old court pleadings, accounting records, letters and many other things.  The documents need to be in good condition and hopefully, be originals.  Which brings us to the advice:

PLEASE don't write on original documents!  Your writing can make the document hard to read, but more importantly, it may become inadmissible because it contains hearsay and because it is no longer authentic.  The extra writing is considered hearsay, which is generally inadmissible, and the document has been changed into something new by the writing.  It may seem like a trivial technicality, but that writing does cause a problem.

HOW TO AVOID THE PROBLEM?  There are several simple solutions:

• Make a copy and write your notes on the copy.
• Scan the document and make a PDF.  Then print the document and put your comments on that copy.
• Use a sticky note for your comments.
• Just make notes on a separate page.
• Use self restraint. Don't write comments. Just tell your comments to your attorney. 

Your attorney will be much happier and your case will be in better shape if you follow this advice!

Should We Do Informal Discovery?

Discovery is a necessary stage for most divorces.  It is the process of gathering and sharing information about different aspects of the parties going through a divorce or other Family Law issue.  There are some standard steps that attorneys often follow, written questions, requests to turn over specific documents and requesting other information and basic information about the witnesses and issues that are expected to be used in a trial.  Sometimes one or both sides will want to take a deposition of various witnesses.  That involves having a court reporter and doing an audio and/or video recording, usually with a typed transcript of the questions and answers.

Attorneys must decide not only which discovery processes to use, but how formal to make the process.  In many divorces, informal discovery can be perfectly adequate.  Informal discovery can be faster and cheaper than formal discovery, but there is also a risk that something may be overlooked, although that can also happen in regular, formal discovery.

In Tarrant County divorces, when the attorneys know and trust each other, informal discovery is often done.   

Just like in some diplomacy, however, we generally follow the approach of "trust, but verify".  Here's a way to do it:

1. Each side determines what information they need and whether they will  need an expert or some other third party.  The parties figure out what specific items they need to request.
2. The two sides will talk about what they have and what they can provide to the other side.  Talking with the other side during informal discovery is a rational, common-sense way of working that doesn't often occur during formal discovery.
3. Sometimes, the two sides hire a joint expert to give a value or some other opinion.
4. Each side will almost always prepare a sworn Inventory and Appraisement listing all the assets and liabilities, along with values.  It also is a way to confirm that everything has been identified and listed.  In other words, it states that there are no undisclosed assets and liabilities.
5. At mediation or in settlement, we often also request that the other party sign a statement under oath saying that everything has been disclosed.

If informal discovery doesn't work out, the parties can always resort to formal discovery, so there is a back-up.

The alternative to informal discovery is to start with a costlier, slower and more labor-intensive process, formal discovery.  Sometimes, if the attorney is unknown or not known to be  trustworthy, or if the party is untrustworthy,  formal discovery is the only way to go.

Caveat:  There may not be an option to do informal discovery if the other attorney has been hired and directed to make life difficult for your client.  If there's an angry party on the other side who wants to punish or hurt their spouse, there won't be a choice.  Unfortunately, the people wanting to use that strategy often don't realize the extra cost that involves for themselves as well.  You just can't make people be reasonable.
 
 

Why You Shouldn't Be a Jerk!

Some people just can't help it.  They are jerks.  I prefer to think that anyone and everyone can behave well if they choose to.  For some, it takes a lot of concentration, and then some occasional backtracking to undo an initially rude or inappropriate reaction.  I believe that almost everyone can act right, if encouraged and reminded, and if they understand it is in their own best interest.

In general, everyone will need a favor, such as getting a hearing reset, an agreement to allow more time to respond to something, leniency or the benefit of the doubt.  Jerks don't often get the favors.  

Here are some specific ways being a jerk can affect you in the legal system.

1.  You may face stronger opposition from the other side.  They are less understanding or forgiving.  If you (figuratively) slap them in the face, they probably won't turn the other cheek in litigation.  Mad people fight back!

2.  The Judge won't like you.  The Judge is bound to follow the law, but he/she is not a robot.  There will always be matters, especially in Family Law, where the Judge is allowed a wide range of discretion to decide outcomes.  You need the Judge to like you when he/she is deciding property division, allocation of bills, support, visitation and other issues. Like it or not, most legal decisions are not precise applications of the law which produce mechanical results.  Most decisions are discretionary.  You don't need to fight the Judge.

3.  Other important officials who don't wear robes may not like you.  Humans fill the roles of court clerks, court coordinators, bailiffs, child support office workers, employees of the Domestic Relations Office and employees of the Texas Attorney General's Office.  You may not ever think about some of them, but they see, know and talk about you (that's not just paranoia) and they can influence how easy or how difficult your life is in the future.  You are better off if they don't remember you, because they normally just remember the "problems".

4.  Your own attorney may not stick around.  Most attorneys are busy.  Very few want to waste time and put up with aggravation from a difficult client.  

5.  It will be harder to find witnesses and allies willing to help you out.  Forcing someone to come to court and testify is usually a bad idea.  Yous want voluntary witnesses.  You want people coming forward and wanting to help you out.  An ungrateful, vindictive, mean person usually has a hard time getting help from others.

Bonus Point:  The more you fight, the longer it will take and the more it will cost.  Don't complain about those things if you choose to be a jerk!

You Can Both "Win"

Or, why it's OK for your spouse to come out of the divorce in good shape, too.

For many different reasons (competitiveness, anger, revenge, control or mental illness, among others) parties going through a divorce often feel like they have to "win".  But, as Charlie Sheen showed us, "winning" isn't everything.  In fact, in divorce, the drive to win can be very destructive and certainly raises the cost of the process.

Here are some ideas to consider as you start out in a divorce.

1.  If there are children, both you and your spouse will remain the parents of your children, and the kids should feel good about their parents.  Unless your spouse has done something really heinous, he or she will be a part of the children's lives forever.  The children feel like they are a part of you and a part of your spouse.  You certainly don't want the kids feeling bad about a part of themselves.  Destroying your spouse will hurt your children.

2.  Making your  spouse mad at you can lead to more problems for yourself.  Sure, everyone gets upset during a divorce, but you can try to limit the damage by limiting how rough you act.  If you (and your attorney) always play hardball, your spouse will probably be much angrier than he or she would have been if you had taken a more reasonable approach.  Think about how your spouse acts when he or she gets mad.  You don't have to rollover and let your spouse get everything, but there is certainly a middle ground between that and hardball.

3.  A bad result can cause financial problems for one or both of you.  One or both of you may have credit problems. Savings and credit lines are often used up. Struggling financially post divorce, especially if you have kids, can lead to problems for the other spouse:  joint bills not being paid, extra expenses having to be covered by the other spouse, tight budgets, etc.  Even after the divorce, there is still some financial connection for at least a while, and often longer.  Going overboard with the divorce fight can drain the resources of both of you.

4.  You will look good to your family, friends and the community.  That's a good thing.  Whether you believe in Karma or not, the good you do will come back to help you later in life.

5.  A happy ex-spouse may help you later one.  You know that from experience in other contexts.  You don't have to become life-long enemies.  Ex-spouses often work together better post divorce.  It happens all the time.  Yes, your spouse may be the one who never gives you a break, but it's worth it to try.  If you have kids, you will need help and cooperation from your spouse.

CAVEAT:  Sometimes one party wants to "play nice" and the other one wants to take a scorched earth approach.  If you want to be the nice one, you may not be able to be as nice as you want, but you don't have to go all the way in to the opposite extreme to counteract your spouse.  All the above points are still true.  You will do better and feel better if you can look at things from a long-term perspective, rather than just an immediate battlefield point of view.  Good luck!

7 Bad Strategies for Divorces

Attorneys handling divorces hear and see a lot of things that are signs or symptoms of problems for their clients. If you are going through, or about to go through, a divorce, and you say or do any of the following, you are going to make your life more difficult and probably more expensive.

1. Saying that cost is no object. That's literally true for very few people. For most people, there will be a point when they realize the cost is starting to exceed the expected benefit. As that scale tips, people become unhappy. They realize that they have spent a lot of money and still haven't accomplished all that they wanted. It's better to be realistic from the beginning and put limits on your spending for attorney's fees and other litigation expenses.

2. Being too cheap. "Nickel and diming" everything. If you can't afford reasonable costs, you should reassess your approach or just stop for a while, if you still can. While being frugal is often good, you should not cut back too much on essential expenses. Work with your attorney to come up with a reasonable budget for what you need to do.

3. Listening too much to others. That can be a serious problem, especially if you decide that you want to do something or not do something because of what someone (other than the lawyer) has told them. Each case is different. Laws are different from state-to-state. It's much better and safer to strategize with your attorney.

4. Being in a hurry. Most legal matters take much longer than clients want or expect. If you are in a hurry, and especially if the other side becomes aware of that, you will be at a significant disadvantage in negotiating. The party who's not in a hurry can easily put pressure on the other party by simply slowing everything down. When your goal becomes a speedy resolution to the issue, you lose a lot of your bargaining power for getting a good result.

5. Having another significant other waiting in the wings. The "other" will probably encourage you to be in a hurry to settle. See #4. In addition, if you ex finds out about the "other", your ex may become angry and uncooperative. Finally, people tend to make bad decisions on the rebound. Be careful.

6. Using the kids as a weapon. This is such a "no-no". Don't threaten to keep the kids away from the other parent. Don't trade visitation or money for time with the kids. Try to focus on what's best of the children.

7. Signing an agreement without legal advice. Sometimes people try mediation without attorneys or negotiate or go to court without attorneys. Be sure to take any proposed agreement to a Family Law attorney to review before you are finally committed to a deal. It's safer to have an attorney advising you all the way so you can avoid problems that you may not even be aware of.

If you will avoid these seven bad strategies, your life will be much better. If you think about taking any of these approaches, be sure to discuss your ideas with an attorney. Good luck!

New Tarrant County Family Courts' Rule on Electronic Devices

There's an important new rule that the Tarrant County Family Law Courts are enforcing.

Everyone entering a courtroom must make sure that all electronic devices are turned off. That includes phones, smart phones, computers, electronic readers and any other electronic devices.

The rule applies to attorneys, parties and witnesses. It also applies to the audience.

Apparently, there have been some secret recordings made of court proceedings which were then published on the Internet, which is obviously easy to to. Most likely, the recordings were intended to embarrass or harass the other party, or maybe to influence other witnesses. Also as we all know, recordings can be manipulated and distorted. There is no legitimate need to make those personal court proceedings even more public than they are.

The posting of the recordings, audio or video, in the future will have serious consequences to whoever participates in the recording or posting.

Attorneys will have to ask permission to be able to turn phones or computers back on, and they are still subject to the no-recording rule.

For good cause, which is up to the Judge to decide, a party might be able to turn a phone or computer on, but the no-recording rule remains in effect.

For what it's worth, you can still talk about what happened in court, after it's over, unless the Judge places some restrictions on the parties. Nevertheless, it would be wise to think before you speak. Whatever you say can and will be used against you!

How to Settle a Litigated Divorce Case

Although every case is different, there are some steps that you can follow to try to settle a divorce case in litigation. I say "try" because one side alone cannot control the outcome. Approaching the case in a logical and rational manner may help move you to a reasonable solution, but keep in mind that rationality is often in short supply in divorces. Still, it should help to know what to expect.

1. The first step is to establish your objectives. What do you want to accomplish? How do you want this to turn out? How do you see your life after the divorce? You should broadly define your interests, needs and goals regarding assets, paying bills, living expenses, housing, child support and visitation (if you have minor children) and retirement plans. Knowing where you want or need to end up will help determine your course of action.

2. Gather information. There are a number of posts in this blog and others dealing with information you need to gather. In litigated cases, there is often formal discovery, which consists of written requests for providing documents and other material, written questions to be answered and possibly depositions, among other things. Your attorney will direct you on the specifics, but you should expect to need information for at least the last 3 years, including tax returns, bank statements, credit card statements and financial statements, among other things. It would also help to prepare both a current budget and what you would expect your budget to be post-divorce, to help with planning and determining your needs. Sometimes experts are hired to determine the value of certain assets, including businesses, pensions or real estate.

3. Consider the motivations and interests on both sides of the case. Analyze what you think would motivate your spouse to come to a reasonable agreement with you. Sometimes, it seems like nothing can make your spouse reasonable. In reality, there's always something that each party really wants or needs, or fears. When you figure that out, you will be better able to get the case settled. Hopefully, you can figure out how to meet your spouse's interests at the same time yours are being met.

Sometimes, you need to mix in a dose of reality. No matter what you or your spouse wants, the judge may never order it or approve it. That should be taken into account. At the same time, there may be some issues that the judge has clear, standard rules about and you will need to conform to his/her approaches.

Also, some battles are limited by the fact that one or both parties lack the money or motivation to continue a fight. Real practical considerations should come in here, although some people insist on fighting even when they have run out of money.

In addition, encouragement to fight may be coming from the other party, the other attorney or the collection of unofficial advisors that everyone going through a divorce gets advice from. You need to figure out the source of the advice to fight so you can try to counteract it.

4. Work out a comprehensive agreement. You need an attorney with experience in negotiations. Rarely does the process go smoothly or quickly. That can be very frustrating, especially when one side is really stuck on one position. Don't expect your spouse to see things the way you do. Compromise is a necessary element on both sides.

One way to improve your chances of success is to use a mediator. Your attorney can help pick out a mediator who is appropriate for your case. Mediators generally have a success rate of 90% or better. Most Tarrant County divorce courts order cases to go to mediation before being able to go to trial. Obviously, it is a very effective way to settle cases. Your attorney will help you prepare for mediation.

5. Final steps: prepare the paperwork and get it signed. The more complicated the case, the more paperwork there is, but there will always be more than you would expect. It sometimes takes a while for the attorneys to agree on the wording, so don't be surprised if it takes a while to complete the paperwork. Even though attorneys use somewhat standard forms, there are always changes to be made to match the terms that were agreed upon.

Note: If you are lucky enough to be able to use Collaborative Law to settle your case, the steps are similar: Set Goals; Gather Information; Develop Options for Settlement; Negotiate to Agreement; Prepare the Paperwork. BUT, the tone and atmosphere are very different in Collaborative. Check it out on this blog and my Texas Collaborative Law blog for more information.

"What Would You Do?"

Clients often ask me to tell them what I would do if I were in their place when we are at a crossroads in a case. That's an understandable question when facing a difficult decision, but I don't like to try to answer it because: (1) it's really not my case, (2) it's not my life being affected and (3) I can't fully put myself in my client's shoes. Instead, I try asking questions that help my client consider different points of view and better understand the consequences of different courses of action.

A recent article in the Huffington Post online answered the question, "What do Divorce Lawyers do in Their Own Divorces?" It's a good article and I agree with the analysis and conclusions. The answer is that divorce lawyers, who know the most about the system, try to stay out of court. They negotiate and try to settle their cases without court appearances, or at least without going to trial. Just about every divorce attorney or judge I know who has been divorced has worked very hard to keep their case out of court. Here are some reasons why.

1. Going to court often wastes time, energy and money. Courts don't run on time and are often very slow. It is very common for cases to get reset and it drives clients crazy -- understandably so. It's stressful getting ready and appearing at court. And of course, it's very expensive: waiting around, slow hearings, breaks in the hearings and resets all add to the bill. On many levels, going to court is wasteful.

2. Court is never like the movies of TV. Whether you like Perry Mason, The Practice or Boston Legal, they don't portray what you will experience.

3. Attorneys know the consequences to fighting. Some attorneys will encourage fighting because they sense that's what their client wants to do, and sometimes there's no choice if the other side chooses that approach. Still, attorneys know that fighting is ultimately destructive and expensive. If they can avoid it for themselves, they will.

4. There's really no winner if you go to court. Sure, you will probably eventually get a decision from the judge, but you very likely won't be satisfied with a lot of it. Judges tend to spread out the pain and have something good and something bad for both parties. Judges rarely see a case where only one party is at fault. Almost always, both parties have done bad or dumb things that can tick off the judge. You can't control the decision-making when you turn it all over to the judge. Judges must follow legal and evidentiary rules that can be frustrating for the parties who expect that they will win because they will just tell the judge "the truth". That doesn't really happen.

5. You usually don't get your day in court. Over 90% of cases will settle without a trial. That means you don't get to testify and have the judge praise you for your courage and honesty. Even if you go to court, you never really get to say everything you would like to say. Most people leave the courthouse pretty upset about something in the judge's decision or how a hearing was handled.

So, what would I do?

• Listen to your lawyer when he/she tells you to consider a settlement offer. Make a settlement your main goal.

• Consider using Collaborative Law. It is a process that leads to peaceful, rational agreements between parties in a safe environment. Check out my Texas Collaborative Law Blog for more information.
  

• You can also consider doing mediation early and not waiting to the end of the process, just before a trial, which is a common scenario. If you and your spouse start off preparing for mediation, it will be more efficient and will save money and reduce stress for both of you.