Let's be honest. Most of us were taught to wait our turn to tone it down to save it for later. Later, when the kids are grown. Later when the timing is right. Later when you finally stop caring what they think. Well, I'm done waiting. I'm Hannah Henry Bell, Texas divorce lawyer, mom and woman who rebuilt her life from the wreckage.

This is not saving it for later. The podcast guiding women through divorce and beyond. The place where we stop whispering about what's hard and start talking about what's real. Marriage, divorce, money, motherhood, faith, sex. Power. No filters, no fake empowerment BS, just straight talk and practical truth for women who are done pretending that everything's fine because your next chapter isn't waiting on permission, and neither are we.

Hello and welcome to not saving it for later. This is your host, Hannah Hembree Bell. This is the podcast supporting women through divorce and beyond. And we're here today with Sam Coletti, my good friend, and about to be yours to talk about all things mediation and who knows what else comes up. So hey, Sam, thank you so much for being here.

I'm so excited to talk with you, I always am.

01:01:22.570 — 01:01:23.370 · Speaker 2

Thank you. Hannah.

01:01:23.410 — 01:01:43.370 · Speaker 1

Yeah. So, Sam, a little context. Sam and I are good friends in real life. We are colleagues as family lawyers in Austin, and I think, like kindred spirit colleagues and like always, sort of pushing each other into the next, I don't know, next, whatever that is at any different point in time. There's always something.

Is that.

01:01:43.370 — 01:01:44.890 · Speaker 2

Fair? Strongly agree.

01:01:44.930 — 01:01:57.650 · Speaker 1

Okay. I'm. I thought it was cute. I was when preparing for the the show, Sam had written up like a bio thing. And I think my favorite fact is that this is now your anniversary of being able to dunk a basketball for 30 years.

01:01:57.710 — 01:02:15.110 · Speaker 2

At least 30. I think I may be coming up on 32 or so. I think I was 15 when I first got one down. Um, and that was a super proud moment right up there with like, graduating from law school, getting married, having my first child, you know, it was it was that level, right?

01:02:15.150 — 01:02:22.270 · Speaker 1

Yeah. You know, I, I've never dunked a basketball. And I feel like if I could dunk a basketball, that's all that I would ever be talking about. So I like.

01:02:22.510 — 01:02:23.390 · Speaker 2

Absolutely.

01:02:23.470 — 01:02:27.430 · Speaker 1

Because, because just for anybody who's listening. So how tall are you seeing me?

01:02:27.430 — 01:02:28.030 · Speaker 2

I'm six, five.

01:02:28.070 — 01:02:45.630 · Speaker 1

Six, five. I was like at least six four or so. I'm five three or so. So like, the delta between us is pretty substantial. Um, and Sam's one of my ginger friends. I like red haired people. Have I told you this before? That red haired people in life are always drawn to me. I'm drawn to them, and we're always friends.

01:02:46.150 — 01:02:47.270 · Speaker 2

I don't know, how about that?

01:02:47.270 — 01:02:54.190 · Speaker 1

I know it's a thing. Like in any situation, if there's a red headed person in the room, we will become friends. It always happens. I don't know what that is.

01:02:54.310 — 01:02:56.280 · Speaker 2

Well, I'm glad I was in the right room with you at the right time.

01:02:56.320 — 01:03:03.040 · Speaker 1

You were my first ever mediator in a case I did as a lawyer. I don't know if I ever told you that.

01:03:03.040 — 01:03:04.760 · Speaker 2

That case did not tell me that.

01:03:04.760 — 01:03:10.400 · Speaker 1

That case that we did, it was my very first case. And you were my very first ever mediator in mediation.

01:03:10.800 — 01:03:54.160 · Speaker 2

Well, I appreciate you telling me that now, because that's special to me. And I'll tell you why. When I was a baby attorney, I was. I mean, I don't even think I was a year out of law school. I didn't have any idea what I was doing, because that's what happens when you come straight out of law school, right? Is you don't know which way is up yet.

Um, law school doesn't really prepare you for the business of practicing law, nor does it really prepare you for just the day in and day out of taking care of clients. Yeah, so there was a ton of learning on the job. I don't think that's unusual for lawyers and particularly family lawyers. Um, but I have a,

01:03:55.300 — 01:04:49.820 · Speaker 2

memory of being a very young lawyer and having a mediation with our colleague Amanda Andre, and what I remember from that is she was so kind to me and, and so helpful in ways that she didn't have to be right. And that, that that feeling that I got from her of, you know, that that she was going to help me get through this, help my client too, but also help me.

And I could feel that support from her. Um, that was really huge. And, you know, Amanda are still friends to this day. We still work together on occasion. Um, and and I've told her that that I still remember and appreciate her for that when I was just getting started, that she was, uh, that she was more kind to me than she had to be.

01:04:49.860 — 01:05:04.950 · Speaker 1

Um, I would say ditto. And if I was pushed before you just said that really sweet and thoughtful thing about the thing that I remember the most for mediation is that we got tacos for lunch from Taco Deli, and I'd never been to Taco Deli, and I was very excited about that.

01:05:04.950 — 01:05:07.270 · Speaker 2

I introduced you to Taco Deli, too.

01:05:07.670 — 01:05:22.230 · Speaker 1

At the time, I was still down in San Antonio, and so I hadn't moved up to Austin yet, but my client was in Austin. I don't remember how. It was like a referral from El Paso in Austin. Intentions to move eventually to Austin. It wasn't here yet, so I didn't even know what was Taco Deli. So.

01:05:22.750 — 01:05:24.470 · Speaker 2

Hanna, you were indebted to me forever.

01:05:24.510 — 01:07:28.740 · Speaker 1

Yeah, yeah. For. For more reasons than I can probably count. Um, so. Okay. Well, that's a perfect segue, Sam. So, you know. Yes. You're a lawyer. You're one of the best lawyers in Austin, for sure. I literally refer you cases all the time from Henry Bell Law. Um, if for whatever reason. Thank you. You're welcome.

Um, we're we're conflicted out. Or they need your special kind of expertise or certain kinds of print ups and post ups and things like that now. But when I think of you, I think of you as a mediator, because that's how I and my, the team at the firm interact with you all of the time. And like my own $0.02 is your special skill in this world is how amazing you are at mediation.

And so that's what I'm hoping we can talk about a little bit, I think. I think what we as lawyers take for granted about mediation is different than what people who aren't lawyers, who haven't gone to law school, who don't deal with this every day, think about as it concerns mediation. And I know this because if you get in any of my socials, you just get in the TikTok comments.

And one of the number one things that people say is, I want let's see, I don't want to go to court. I want to go to mediation. Like, it's almost like they think that there's a choice between the two and don't understand that one is a waypoint on the way to the other thing. So I thought we could kind of start there.

Let's just assume nothing and that anybody listening to this is from the ground up. They're not lawyers. We're not going to talk in legal jargon or whatever. But can you explain to us, um, generally speaking, like what is mediation and how that interacts with court and why to say, like, I'm not going to go to court, I'm only going to go to mediation.

Like, why that sentence to lawyers? They may kind of be scratching their head like, do you even know what you're talking about a little bit? Okay. And remember, you know, there's Texas and we've got the like people all over maybe listening. And I know, you know about mediation kind of across the country.

But just keeping that in mind what's what is mediation and what is it. Maybe not.

01:07:29.500 — 01:08:51.450 · Speaker 2

First I want to say thank you for seeing me. Uh, because the the idea that you see me as a mediator primarily, that is how I'm trying to show up as an attorney. Um, I think that being a mediator is my highest and best use as a lawyer at this point in my career. And you know, I've been doing this for about 20 years, so I've had plenty of litigation.

I've done all different kinds of cases within the realm of family law. Um, I've tried a few jury trials. I've tried many bench trials. Um, and the where it has brought me is that if there's, if there's something that I can do to help the, the the thing that I'd really like to be doing that I enjoy spending my time doing that, I think, is me giving my greatest contribution to people who are having to go through divorce.

And frankly, the lawyers that are helping them is to be their mediator and to get their case settled at mediation. So mediation, as you were saying, there's not a binary choice between Mediation or court mediation is a step along the way.

01:08:51.570 — 01:08:56.530 · Speaker 1

And hang on for a second binary choice that would mean like this or that. It's not either or.

01:08:56.770 — 01:09:52.460 · Speaker 2

It's not either or. Okay. The the hope is that once the parties and their lawyers have, quote unquote, worked the case up enough that they know what's going on, right? We've got all the financials pulled together. We know what the assets are. We know what the debts are. We know what each person's budget is.

We have some sense of maybe at least a rough outline of what a parenting plan is probably going to look like at that point. Your case is probably ripe for mediation, and mediation is a settlement conference. It is typically done in Texas. It is typically done either over zoom or in person. In. And typically you have one attorney and their client and then the other attorney and their client in separate rooms.

01:09:52.620 — 01:10:51.310 · Speaker 1

Okay, wait. Pods though. Hang on. So here's the thing. I think Sam and we are like two lawyers who deal with this all the time, but I think a little bit let's back up one step. So go into mediation because here's one things people will say, oh, we're not using lawyers. We're going to mediation. So like I think we could talk about that question in a second.

But like when you're talking about this. So somebody would already file their case right. They've already said somebody said to the court I need to get divorce. They filed some papers at the court, whatever that's called in their state and pro like you're talking about in the context of maybe both people have lawyers, right.

And okay, so that's this context for everybody listening. So this is the most typical way Sam and I experience it. Somebody file for divorce. Somebody. And both people probably got lawyers. And then they get a bunch of stuff and papers together about money, about kids and etc. then they go to mediation.

Okay, so pick back up from there. So they're decided they want to go to mediation at that point.

01:10:51.350 — 01:11:30.990 · Speaker 2

And in many counties, Travis County included, it's actually a requirement by the local judges that the parties and their lawyers attempt to mediate the case before going to court. Okay. Um, so at that point, we'll schedule a day of mediation. And generally, the way that goes down is that, uh, it's a it's a process of offer and counteroffer.

Right. So somebody's got to just make the first offer, and usually, uh, it customarily it's the person who filed the divorce petition who makes the first offer in mediation.

01:11:30.990 — 01:11:37.270 · Speaker 1

I know they do that in Texas. Do you know if that's how they do it in other states? Do you think that's the rule? Like the custom? Other places? I don't know.

01:11:37.270 — 01:12:12.050 · Speaker 2

It may be. I'm not entirely sure what what I know about Texas versus some other states is that we have just as lawyers, as practitioners and mediators in Texas. We've kind of decided or I don't know if it's kind of an unwritten rule that we do our mediations, caucused the whole time. And by that I mean there is not a a joint session where all five people are together.

We do not get both parties and both attorneys and the mediator all around one big table. Yeah. It just doesn't happen.

01:12:12.090 — 01:12:13.210 · Speaker 1

What could go wrong?

01:12:13.290 — 01:12:32.690 · Speaker 2

Oh, all kinds of stuff could go wrong. Uh, no, because I've seen that happen before. Um, earlier in my career, I had a mediation where the mediator wanted to do that. Um, it immediately devolved into, uh, husband making wild accusations of wife cheating on him, and it was just a total mess.

01:12:32.730 — 01:13:27.740 · Speaker 1

Well, and I think that's a little bit in New York. Maybe if you're like, their the way they do mediation in New York is a different animal than the way we do it in Texas. So like each state, you know, will be somewhat dependent. But like, okay, so we're not all getting together in the same room. You're you're going in person, you're on zoom and sort of what.

I think that's some of the practical, I guess. Sam, what's everybody trying to do at mediation? So when you go to mediation, why why would you go to mediation, right. Because people I think there's this idea, you file the papers and you're going to go to the court, but instead, the way I think of it is like a divorce is like a highway.

So you've started your journey and you're on a highway, and mediation is like the rest stop almost, or like it's a waypoint that you you can get off or you can keep going. So like when you stop at mediation, but maybe before you get to court, what are you trying to do?

01:13:28.540 — 01:13:34.539 · Speaker 2

I think the way that that I would think about that is

01:13:35.740 — 01:14:10.880 · Speaker 2

maybe it's a maybe it's a shortcut. Off the highway. Cool. Um, because here's the thing about, uh, that divorce highway is, if you are going to court and going to have a trial for your divorce, you are entering a zone of extremely high traffic. So think about, you know, you're in Houston, for instance, and, uh, you've got highways that are six lanes wide and everybody's going 85 to 100 miles an hour.

It's very high risk. Yeah, right. Um, that's what happens when you go to.

01:14:10.880 — 01:14:12.520 · Speaker 1

Trial and add in a lot of tolls.

01:14:12.520 — 01:15:40.420 · Speaker 2

Maybe add in a lot of tolls, too, because, yeah, you know about that. Um, the so, um, mediation and getting your case settled in mediation gives you the opportunity to have your divorce finished, to turn that page, to move to the next chapter without having to go to court and do the things that you must do in court.

And what I mean by that is when you have to go to court on your divorce, you must say things about your spouse, about your soon to be ex that you cannot take back. You are going to ring a bell that cannot be rung, and the consequences of that can be really long lasting. You may have a litany of complaints about your ex, right?

And the problem with the that is really inherent in the civil court system is that it pits the spouses against each other as adversaries, even if they start out with the hope that we think we can be amicable about amicable about this, we think we can get through this without fighting, without making a big mess of it.

It's not that the parties themselves or even the attorneys are itching for a fight. It's a structural problem.

01:15:40.420 — 01:15:41.140 · Speaker 1

Well, sometimes.

01:15:41.180 — 01:15:42.580 · Speaker 2

Adversarial court system.

01:15:42.620 — 01:15:44.140 · Speaker 1

Sometimes they're itching for a fight.

01:15:44.180 — 01:17:51.890 · Speaker 2

Sometimes they are. That's why attorney choice is so critical. We can talk about that more, too. Yeah, but, um, what what mediation gives you is the opportunity to not have to go to court and say every bad thing about your spouse, because really, in court, in a divorce trial, unfortunately, there's really no taking the high road.

You you can do that. You can try to do that. But here's what happens. And I know, because I've been in that courtroom with these clients and just and seeing it just kind of fall apart, right. Is we want to take the high road. We don't want to have to say anything bad about the mother of our children or the father of our children.

Right. But you're also, you know, trying to achieve certain things. You want the judge to see it your way on this issue or that issue. And so then you hear your spouse's testimony when they're on the stand and they're saying things that you're worried about because you're like, oh, well, that that kind of paints me in a bad light.

I don't think I like how that sounded. The judge might not be liking how that's sounding either. I need you to come up with something to combat that. I've got to have a comeback here, you know? And so what happens is then when I or my client, you know, gets on the stand, it's like, okay, well, now's my chance.

You know, if I, if I don't say all the things, then they're just not going to be said and the judge isn't going to hear it. And the judge is going to think that that my spouse is right about all this stuff, and then I might not get what I want. And so it it creates that fear, right? That fear that if I don't go there, if I don't say that thing that maybe it's ugly.

But to me, it's true. That I think is well calculated to help me create a counter-narrative and get the judge to see things my way and rule things my way.

01:17:51.930 — 01:17:55.210 · Speaker 1

And you may think, the person may think, help protect my kids.

01:17:55.250 — 01:18:37.790 · Speaker 2

Absolutely. Absolutely. And that's the thing is that in basically every case I've ever been a part of, both the mom and the dad. Think that the positions that they're taking and the arguments that they're making to the court are what's in their child's best interest. You know, they think I am doing this to protect my kids.

I'm not going to be able to sleep well at night unless I fight for my kids. And you see how easy it is to have that mama bear instinct come out when you're in that situation of We're in a showdown in a courtroom with a judge and a court reporter and a bailiff, and there's lawyers, and it feels so. It feels so intense.

01:18:37.910 — 01:19:23.990 · Speaker 1

What I think to you can pretty quickly find yourself in an ends justify the means mindset of like, if this is what I think is best for my kids, for them to be with me all the time, if I really need that child support to make ends meet, if they did do some things that I'm heard about and somehow I want to get more of the money as a result, right?

That I think sometimes, especially when you're going to court it, it's not hard to understand why people could lose their way of like who they would be on a normal day, or their best day is maybe not. Who would show up at court of like, hey, I'm trying to achieve this goal. So like, yo, lawyer Sam or Hannah gloves are off, take it to him and I'll clean up the pieces later.

But I think what you're saying is it's a little hard to put Humpty Dumpty back together.

01:19:24.030 — 01:19:44.720 · Speaker 2

That's right. And the, um, the thing that comes to mind for me there is that when divorce is an existential question for one spouse or the other, or both, those are the hardest cases to settle.

01:19:44.760 — 01:19:48.200 · Speaker 1

What does that mean? Yeah, when it's an existential question, what does that mean?

01:19:48.240 — 01:19:48.800 · Speaker 2

So

01:19:50.120 — 01:19:57.239 · Speaker 2

one of the things that that I want my clients to think about always is

01:19:58.760 — 01:21:05.650 · Speaker 2

long range vision, right? What is your vision for what your life is going to look like post-divorce? Because it's very easy to get caught up in the right now. And the the the fear, the frustration, the worry about how do I get through the divorce? How do I get unhitched from this person that I just. I can't be with anymore.

Yeah. And the thing is, the the long range planning is just it's to me it's so critical because if you're not connecting the dots between what you and your lawyer are doing during your divorce and, and how that, um, and, and how what you're doing during divorce is, is you've got a through line to what your life's going to look like and be like after divorce.

Then it's super easy to get caught up in trying to be right.

01:21:05.770 — 01:21:14.170 · Speaker 1

Well, yeah. And I've asked I've been asking the question a long time, actually. One of my first bosses told me this to ask the question, do I want to be right or do I want to be happy?

01:21:14.970 — 01:21:17.370 · Speaker 2

Being right is the poor man's version of being happy?

01:21:17.410 — 01:22:02.870 · Speaker 1

Yeah, it's in four. Um, and I think, Sam, that you and I align on this, like, in the my confident divorce prep guide that I put together. The first thing you do is start with the end in mind. So I walk women through connecting with their future self. We even do a meditation. Okay, like what does life look like five years out?

Three years out. Right? And then okay, then developing the way I think about it. Have you heard that little like business story they tell in some of these books about the rowing team? And the one question, oh, here you go. So I mean, there's some sports talk, like just pretend I said interesting sports things.

But basically there was the the British rowing team and they're like, not good. Okay. It sounds like a movie. They're not good at it, but they want to be good at it. Essentially this is probably very true.

01:22:02.950 — 01:22:04.470 · Speaker 2

Is this like the Jamaican bobsled team?

01:22:04.510 — 01:23:55.980 · Speaker 1

I mean, that's what I was just thinking about that movie in my head, in my brain, it's really the Jamaican bobsled team, like that old movie. But anyway, they wanted to they had eyes on going and doing good at the Olympics or something. And anyway, in trying to improve, they developed one question by which they would make all the rest of their decisions.

And that question is, will this make the boat go faster? And so this text message I want to. I mean, for them, it was like going on vacation and having a bunch of margaritas. They might ask themselves, Will this make the boat go faster? Right? And that's how they were able to decide their courses of actions, like waking up at 5 a.m. to do, I don't know, whatever row, practice, whatever you do.

Um, will this make the boat go faster? Maybe. So. Um, and then they ended up winning or doing something great. So, okay, for me, the question when you started with the end in mind and gotten really clear of where you're headed, like what you're talking about then is will this action I'm about to take get me closer to or farther away from the goal I just set out?

It's like, will sending this pop off text message advance my goal of being in a decent co-parenting relationship with this person going forward? Hmm. Maybe not. And ideally irrational self because we're never going to send text messages in the heat of anger. We're going to wait. I don't know whether that'd be nice.

Um, we're going to wait, and we'll be able to make the decision in the morning. Will this get me closer to or farther away? Now, that's how I think about it. It's this one question idea. If you're. But if you don't know where you're going, you can't get there, right? It's a ship without a compass is lost at sea.

If you don't know where you're headed. So I think of it as like your North Star and getting connected with that. Now, Sam, me and you are about the only lawyers I'm come across who talk like this.

01:23:56.020 — 01:24:40.790 · Speaker 2

I think there are some others out there. I know there are some others out there. Yeah, we usually run into them in the collaborative community. Yeah, or in the mediator community, you know, but the lawyers who are primarily litigation oriented know we're not sitting down and having these kind of conversations with those lawyers, usually.

Um, however, I will say that, Um, the lawyers that I know by and large, who have a heavy litigation practice. They know, you know, they know how hard it is. They know how hard it is on clients. They know that litigation is expensive. They know that it's risky. Um, they know that sometimes judges do things that neither side expects.

01:24:40.830 — 01:24:41.510 · Speaker 1

Yeah.

01:24:41.550 — 01:25:12.710 · Speaker 2

Yeah. And they tell their clients that. Okay. And they give, you know, plenty of adequate warning and advice about if we start going down this path, here is what's going to happen cost wise. Time wise, expenditure of energy wise. Um, and and then it's, it's up to the client to make that decision about. Okay.

Well, or are we going to go through the litigation thing or are we going to find some other way to get it done.

01:25:12.750 — 01:27:45.950 · Speaker 1

Well, and that's maybe along the lines you were mentioned about picking the right counsel, the right lawyer for you The way Sam and I are discussing this. I'm not saying it's like unicorn level of atypical. It's not necessarily what I hear. Your average lawyer. Not because they're good or bad or whatever, just not from the same perspective of look.

Yes, you care so much about this thing right now, but remember what you said you wanted in the beginning and actually is doing this going to harm your position in that question? Like, do you want to be right or do you want to be happy? So y'all, if you find yourself talking to a lawyer who isn't talking about your future and isn't talking to you, sort of, and you can feel the vibration, like the energy in which we're talking about this divorce is a means to an end.

Ultimately, it's not an end in of itself. And I think a lot of lawyers get this a little bit catty wampus and think that it I mean, because look, when they're when they get you divorce, they're done with you for the most part. Like call me never. Right. That's the perspective. And look, you want lawyers who are good at their jobs and, generally speaking, litigation.

Go to court lawyers. You want them to have a competitive spirit because it is not for the faint of heart in that courtroom. And it is scary and it is hard and it is intense. And even if you're smart and good at your job, you can still mess up and not do good. And like you said, the judge can like be grouchy that day and do something no one expect or just whatever.

And so you need a bit of this ability like, okay, we'll rumble. I'm ready if I need to be finding someone who can do that while also keeping the main thing, the main thing, and helping remind you to keep the main thing. The main thing is difficult. And so that's one of the things if you're thinking about, if you're in the middle of a divorce and you already have a lawyer and you feel like you're the only one bringing you back to reality, if you're the only one in the relationship saying, but wait a minute, I said I wanted to end this well where I could still like, you know, text with my ex or even maybe work together on holidays and stuff and like me sending this document that, like, accuses him of God knows what is not really.

Are you the one carrying that water? And if so, it could be that perhaps you made a council decision that doesn't support you like it could. I mean, because I guess him, when we think about mediation and it's like so obvious to me that that is you. Um, I don't even I mean, I know you do lawyer things, but, like, I don't know that surprisingly.

01:27:45.950 — 01:27:47.150 · Speaker 2

I just went to court last week.

01:27:47.190 — 01:28:18.250 · Speaker 1

Yeah, it's a problem. I mean, that's a whole different conversation about that, but, um, at meetings. So at court, I don't want to say it's win lose, but it's kind of win lose. Um, I mean, everyone as family lawyers, you'll hear any decent family lawyer worth their weight in salt will tell you at court, no one wins and everyone loses.

Um, because you went to court. And you can't unring that bell. And clearly, like, sometimes there are certain points that you can win. All right, but at mediation, by contrast, is there a winner and a loser at mediation?

01:28:18.450 — 01:28:25.729 · Speaker 2

Typically, no. And that's because the name of the game in mediation is compromise. And

01:28:27.250 — 01:28:35.170 · Speaker 2

I like your one question thought. And I have one question when I'm in mediation.

01:28:36.210 — 01:29:03.250 · Speaker 2

And I got this question from Jacinta Gallant, who is a fabulous attorney, mediator and trainer from Prince Edward Island, Canada. I've taken a couple of different trainings with her. She teaches about insight mediation. Cool. And the fundamental concept of insight mediation is that if I, as a mediator, can

01:29:04.490 — 01:29:15.179 · Speaker 2

ground my presentation, the way that I show up, the way that I'm interacting with the clients in genuine curiosity

01:29:16.340 — 01:29:21.140 · Speaker 2

and not judgment. Right. Because curiosity is like the opposite of judgment.

01:29:21.260 — 01:29:43.099 · Speaker 1

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01:29:44.340 — 01:30:58.960 · Speaker 1

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But what our family wizard does is brings that all into one place. So you have one place to check for messages, one place to be interrupted from your daily life to deal with the whole co-parenting situation. I'm like, in addition to the messaging, it does amazing things like tracks expenses in real time so you don't have to argue about who did what with what receipt.

It does calendar entries. So you're not like, oh wait, sorry, I never got that invite. And you have that whole BS where you're not sure what to do. You can check.

01:30:58.960 — 01:31:02.440 · Speaker 3

In in real time if you're ever worried about, and in future.

01:31:02.440 — 01:31:14.250 · Speaker 1

Enforcement of the provisions in your decree or your judgment. This app changes lives and they've got special promotions and deals for listeners of the show. You can get access to those at Our Family Wizard.

01:31:16.810 — 01:31:38.210 · Speaker 2

Then we can usually figure out good answers to all kinds of problems if we're willing to continue being curious, even when especially when it starts getting hard, awkward, frustrating, exhausting all those things.

01:31:38.410 — 01:31:56.530 · Speaker 1

That Lasso told us. Be curious, not judgmental. That's a dang. I swear of any line in any TV show in the history of ever that's made a bigger impact there. There isn't one that's made a bigger impact in my life than that one. Be curious, not judgmental. I use it all the time, and I think, yeah, in mediation I'm sure it'd be super helpful.

01:31:56.690 — 01:31:59.330 · Speaker 2

And so the one question is,

01:32:00.530 — 01:33:10.280 · Speaker 2

what do you hope will be better tomorrow if we're able to have a productive Deductive conversation today. And that speaks to intention. That is essentially a reframe from me, the mediator. And it's a question that can be asked not just at the beginning of mediation, though. That's a good place to start.

But at any point in mediation, especially at a point where it's starting to feel like we're losing the script. Maybe people are getting upset. There's some there's some raw feelings happening. It's a good grounding question of, hey, what are we doing here? You know, what do you hope will be better tomorrow if we're able to have a productive conversation today?

It's it's kind of magic how that can work because of the the way that it snaps people out of the trying to prove themselves. Right. Conversation and back into the what's really important to me conversation.

01:33:10.320 — 01:33:47.160 · Speaker 1

Well, and because I think so we're we've set up the stage. We're going to file somebody file for divorce. Maybe this is typical. Both people have lawyers were at mediation. And I think ultimately the goal is that you figure out how you're going to divide up and deal with all the money, all the stuff, everything about the kids at once.

And at least in Texas, at the end of that, you're going to get a paper, right? It's called a mediated settlement agreement. MSA Sam has like the most, biggest, fanciest case. I always plug you about your case about MSA is the deal's a deal.

01:33:47.320 — 01:33:48.800 · Speaker 2

Um, oh, the Smith case.

01:33:48.840 — 01:33:56.320 · Speaker 1

Yeah. So that's Sam's case, which means a deal's a deal. And in your mediated settlement agreement in Texas,

01:33:57.600 — 01:35:14.230 · Speaker 1

I heard my friend Robert Vaughn Dolan over in Houston said it's easier. What did he say? It's easier. Yeah, it's easier to get out of the Navy in Texas than it is to get out of a mediated settlement agreement. I said that's my buddy Sam's case. Um, anyway. And so you get this deal, and then afterwards, y'all, you get this paperwork.

But I always explain to clients, you only got to third base, right? Right. Because you got to write up a big old document because I think people mistakenly think at mediation. They're divorced now. But what happens is you just agreed on the main things. Then you got to write up a 50 page document that explains how all this stuff is going to get dealt with, and then eventually a judge is going to sign it.

So I'm just trying to give the context of like what actually happens so we can understand when you're there, what's going on. Because what Sam and others like Sam are trying to do in this day. Some states you do multi-day, some big cases in Texas you do multi days. What you're trying to do is get everything squared away, like literally down to the furniture.

The China if at all possible. That's that's success for you as a mediator. Right. That's what you're tracking. How many of these did we get done.

01:35:14.430 — 01:36:13.720 · Speaker 2

And the the best days as a mediator is when we can get all of those things figured out and on paper and into a mediated settlement agreement, knowing that we truly have covered everything and not only have we covered everything, but it is detailed enough and written clearly enough that the lawyers are going to have no problem taking that perhaps 3 or 5 page mediated settlement agreement and turning it into a 45 or 55 page divorce decree.

So that's that's really the, to me, the gold standard Of you know, did did you have a good mediator and a good mediation is do you have a mediated settlement agreement that really does cover everything? And that is clear enough that the lawyers have no problem getting it turned into a divorce decree.

01:36:13.760 — 01:37:29.810 · Speaker 1

Okay. So that's the goal. This document that gives you most of the terms, your state may differ in how the kind of technical thing. But like, okay, same thing. We're starting with the end in mind. That's what we're trying to do when we go there. And if you go into mediation, being a horse's booty about the whole thing with your head stuck in your sand, it stuck in the sand or like really dug in your heels on certain things.

Um, does that get you closer to or farther away from that goal? Right. So let's do this. Let's think about maybe the mindset, Sam, that people need to take when they go into mediation. So say someone's there, their lawyers talk to them about mediation, they're going to be going. And I think like Times. What lawyers well-intentioned do is say, okay, give me your laundry list, give me your wish list.

And that's their prep, right? Like, here's 72 things that I want out of this. Right. And they come in and they've talked to their mama and their sister and their best friend and their cousin who got divorced, and their brother and their uncle and their daddy. Okay. And so they're like, okay, these are the things it's almost like they think they're they're buying a house or something.

They're going to come in and bring this list and deliver it to you, and you're going to go get it all for them. But why is that? Maybe not the best approach.

01:37:31.010 — 01:37:35.450 · Speaker 2

Great question. And I think I have a lot to say about that.

01:37:35.490 — 01:37:37.730 · Speaker 4

Okay, here we go. Here we go.

01:37:37.810 — 01:38:06.870 · Speaker 2

Um, let me start here. Um, the the the concept of first offer looks like a wish list. Looks like a letter to Santa Claus. Looks like a demand for surrender, right? That's not an offer of compromise. Okay. And there is a big difference between a wish list and an offer of compromise. So

01:38:08.110 — 01:38:26.110 · Speaker 2

you just got to come into it knowing that for. And this is true of all family law and every point in the case. And not just mediation but in family law for every action there's an opposite and unequal overreaction.

01:38:26.150 — 01:38:26.350 · Speaker 1

Yeah.

01:38:26.870 — 01:38:27.070 · Speaker 4

Yeah.

01:38:27.070 — 01:38:46.110 · Speaker 2

That's right. So that happens in mediation too. So if you come in with this first offer that you want the sun and the moon and the stars, well guess what. The other side is going to make a first counteroffer. That's going to be just as wild but in the opposite direction. And so what does that do? It creates this huge gap.

01:38:46.150 — 01:38:46.950 · Speaker 1

And waste time.

01:38:46.950 — 01:39:11.320 · Speaker 2

Between where you are and where they are. And not only does that waste time because, look, there are the mediation process as we do it in Texas sometimes. And I don't love this, and I wish that we had like just a better way to approach this. And I think insight mediation is really the better way if we can get people to kind of go along with it.

But

01:39:12.760 — 01:39:51.480 · Speaker 2

mediation often becomes less a way of achieving true resolution and more a way of creating a winner and a loser by attrition. Right. Somebody gets exhausted of the process at some point. Somebody just gets frustrated. Somebody is just like, oh my God. Can we just. Can we just sign this? I'll fine. I'll do it.

I'll just do it. You know, and you know as well as I that's the scary moment as a lawyer, when you have a client that you know is just feeling beat down and worn out because they process.

01:39:51.480 — 01:39:58.940 · Speaker 1

They will come for us when this is over. How could you let me? You made me sign it. That mediator made me sign those documents.

01:39:59.260 — 01:41:35.710 · Speaker 2

Yeah. And. No. No lawyer wants to be in that position. And every good lawyer that I've ever worked with has always told their client, look, you don't have to do anything. I'm never going to make you sign to you. I can't make you do anything. Because if you, as the lawyer in mediation, are remembering kind of what your lane is, you know, the lawyers are the helper.

You know, we're here to give advice. We're here to give perspective. We're here to prepare and present. But we're not here to make decisions for you. And if you as a client are asking your attorney, you know, well, what should I do? You know, it's like, well, look, they should give you advice, right? They should talk you to through like, okay, well, here's the consequences if we do this and here's the likely consequences if we do that instead.

But then you get to make that choice, you know, and it's, there's, there's nothing more, um, you know, kind of like feeling like you're being put on the spot as a lawyer. Then when a client says, well, Sam, what would you do? You know, like, well, well, is that is that relevant information for you right now?

You know, because this is not my life. This is your life, you know? So you've got to make the decision that's best for you. I can try to give you perspective on it. Um, but you don't get to outsource that decision making to your lawyer. That's just not a good idea.

01:41:35.750 — 01:42:50.020 · Speaker 1

And what always gets me when people try to say things like, you made me settle. You wanted me to settle the mediator. I'm always just like, okay, practically speaking, let's think this through. I, as the owner of a law firm and a lawyer, make less money. If you settle this case, then it's real expensive to go to trial and maybe have a jury trial and the whole thing.

And so, like, just think about it. If you're. Because sometimes it's this intimation, if not just like direct accusation of like, oh, you made me do this because some in this idea that like somehow it benefits you. And I'm like, look, I mean, I guess like it benefits me. Like if the client is making me insane, then I'm done with them faster.

Maybe. But I always have to remind them, like, think this through. If we're done today, that's me being a fiduciary for you. I'm putting your needs ahead of mine. Because ultimately, if you think that's what people think about a lot of lawyers and I understand why they think this, but like, all they care about is money.

Well, if your mediation fails and you go forward to court, the lawyer is going to make more money. So like they want you to settle at this juncture. It could be that they're really sick to death of you. Let's be honest. Like they don't want to see your face anymore. That's one option. You're a really difficult client.

I mean, and they they just can't reason with you and they just want it done.

01:42:50.060 — 01:42:51.220 · Speaker 2

Difficult clients exist.

01:42:51.260 — 01:44:35.550 · Speaker 1

Yes, that happens, but more often than not, I would say 98% of the time it's because we know if you don't settle it, mediation. The other choice is to go to court. Like, here's what I explain to people all the time. You get things in divorce by agreement or by the judge saying so. Two choices. You agree or the judge says it.

Mediation is the agreement phase. Court is the judge said so face. And so at mediation, I think that, you know, nobody's going to try to make you do anything that's the wrong perspective. And if you're feeling that way, you're with the wrong lawyer. Like something's gone awry because it just doesn't make even practical sense.

And I think that when people come in, like just understanding that from the perspective. Like there's so many things to unpack. Um, but, you know, when they come in with that idea, nobody's gonna make me do anything. If you know that going in and we're telling you like that should go ahead and ask your lawyer before you ever get there.

If you want to know their feelings on this, I would think they're going to at least ostensibly, like in word, agree with me and Sam. They don't want you to do anything. So no one's going to force you so you can go in and just decide with this insight version you're talking about, like, what do I actually want here?

Not with the wish list, like you said. Because what's going to happen is I want the sun, moon and stars. The other side is going to say, I want the sun, moon and stars times two. And then what? You're just worse off than where you started. So like, if they're not going to do the Christmas list versus each other approach, Sam, what are they going to do instead?

01:44:36.070 — 01:45:46.860 · Speaker 2

What I tell people over and over again and lawyers too, and I tell clients this in front of their lawyers because I want their lawyers to hear it. is that to me, mediation really starts in earnest with the second offer, because the first offer may be the wishlist offer, but the second offer needs to, and typically does contain actual compromises.

And one way to think about it is if you want more of your needs met in a divorce settlement, then okay, let's be sure we've identified exactly what those needs are. And we have correctly characterized those things, those things as needs rather than wants. There's a lot of things we want. We're not going to get all the things we want in mediation, but can we get the things we need?

Yeah, usually we can. Um, but the way to go about getting as many of your needs met as possible is to try to find a way to make sure the other side's needs get met as well. Well, okay, Sam, but, like, how do I even know what the other side's needs are?

01:45:46.900 — 01:45:55.820 · Speaker 1

Well, hang on a minute. I'm feeling the heart of people listening to this. Why should I give two shits what his needs are after everything.

01:45:55.820 — 01:45:56.700 · Speaker 5

He's done to me?

01:45:56.900 — 01:46:32.540 · Speaker 1

I mean, I just felt it in my spirit. Oh, yeah. People listening like, I don't know, because a little bit Sam like. And I'm gonna talk about this in a minute. It's like laying in wait, this question, because you and I in mediations sometimes have come to juggernauts about the world I've experienced and the way this version of mediation goes.

Like, I feel like you're talking about it in this way. Yes. Ideally, yes. That's how everybody should. And then there's real life. So like this idea of getting my needs met, but you got to think about their needs getting met. What do you say to the woman who's like, you have no idea. This person has abused me.

They've treated me like crap all these years.

01:46:32.540 — 01:46:33.620 · Speaker 6

They blah, blah, blah, blah.

01:46:33.660 — 01:46:45.150 · Speaker 1

Every bad thing that can happen. How is she supposed to square you? Telling her to think about. There needs to with all the pain.

01:46:46.310 — 01:46:51.190 · Speaker 2

My message in that situation is do not give away your power.

01:46:53.310 — 01:47:38.990 · Speaker 2

When you as a client, as a person who's going through divorce, especially a woman who's going through divorce, when you're faced with this, this, this reckoning. You know, usually this when, when you come to that point of I just have to file for divorce. I just can't do this anymore. It's usually so many things have happened, so many things have gone wrong.

It's not just one thing. And so there's there's such a history, this there's such an emotional history there. Um, that and that is kind of the backseat driver on the decisions that are getting made in the divorce and

01:47:40.050 — 01:48:28.090 · Speaker 2

the thing is, the the belief in your own power is what's going to really carry you through and make your life what you want it to be. Post-divorce. Right? Because if you're hanging all of your hopes on getting what you need out of life, on what can I get out of this guy in my divorce settlement, then you are giving him way too much power.

Okay. There's a finite amount of resources that you're going to be able to claim as you walk out the door, right as you leave the marriage and

01:48:29.290 — 01:48:55.180 · Speaker 2

the like. Don't get me wrong. Like, get what you can. Get what you need. But but understand also that there is a point at which the feeling of need is not actually addressing a quote unquote, real life in the 3D world need. It's really more of a,

01:48:56.460 — 01:49:21.020 · Speaker 2

um, a desire for, uh, for justice, for, um, for a just real fundamental sense of fairness of and then sometimes also of like retribution, you know, of, of, of having been hurt and wanting, um, you know, just wanting some meaningful recognition of that.

01:49:21.060 — 01:49:42.760 · Speaker 1

If they do like what you're saying, I think you're right. Like, if they're not going to get if he's not going to have to pay for what he did in this context, and obviously she we're just talking to women right now. If they if they're not going to have to pay for what they did at mediation. And then if we settle, we never go to court.

What's she supposed.

01:49:42.760 — 01:49:44.120 · Speaker 5

To do with all of that?

01:49:44.160 — 01:49:45.440 · Speaker 2

Yeah. And

01:49:47.000 — 01:49:50.560 · Speaker 2

the. The problem is that

01:49:52.080 — 01:49:54.640 · Speaker 2

Hollywood popular media

01:49:56.280 — 01:50:40.010 · Speaker 2

has taught us as a society that if you have suffered some kind of hurt, if you've suffered some kind of energy, if you've injury, if you've suffered some kind of injustice, then the way that you obtain compensation for that is you file a lawsuit, you go to court, you have a trial, you tell the judge about it, and the judge is going to hear that, and they're going to make a decision.

And if they think that you're worthy, that you're that your injury, you're damage meets the legal standard, then you're going to be awarded Compensation and that that comes in the form of cold, hard cash, right? And

01:50:41.450 — 01:50:48.650 · Speaker 2

that's just not the way that it works in civil court in a divorce.

01:50:48.690 — 01:51:00.370 · Speaker 1

I had a client early on tell me, and he had been like a worked in-house somewhere or something. And he said, honey, the last place you want to go for justice is the courthouse steps.

01:51:00.970 — 01:51:03.049 · Speaker 2

One thing I've said before is

01:51:04.930 — 01:51:22.410 · Speaker 2

if you're asking like, how much justice am I going to get in my divorce? The answer is not as much as you want. Now, how much of the justice show are you going to get? As much as you want to pay for?

01:51:22.530 — 01:51:23.210 · Speaker 1

I know.

01:51:23.210 — 01:51:25.930 · Speaker 5

For me, in my own life.

01:51:27.490 — 01:51:29.929 · Speaker 1

I had these questions back then

01:51:31.490 — 01:52:59.920 · Speaker 1

and all the things that would happen. People would be like, always gets away with everything. You've heard this from clients. They always get away with everything. They never have to pay for anything they've done. And I have to tell you, the only time ever in the history of ever at all that I've ever felt there was any payment, retribution.

Justice was in a cross-examination in my custody case, in a jury trial where the judge held him to account, to answer the question. And I had a really good lawyer, Hector Mendez, who is well known and in, um, in Texas and is I mean, if you need a trial lawyer, he's going in. And it was the first time, in my experience, that anybody had made this person answer the question, account for your behavior, account for your actions, for what you've done, and even talking about it like I.

I'm sitting up straighter, my hands clenched. Oh, feeling. And I feel angry and I feel hot and I feel mad. All right. 20s ago. Soft and relaxed and just talking with my buddy Sam. See, even the memory of that little bit of payment, it doesn't make me feel better. The one moment I got where he had to answer. What is it, ten years later?

At this point, it. I'm. I literally just got sweaty.

01:53:01.160 — 01:53:01.920 · Speaker 2

You're glistening.

01:53:01.920 — 01:53:12.600 · Speaker 1

I'm glistening. Right. Having that conversation. So I think I would just say that as being the client and the person answering this question is like, look, you may think you want justice.

01:53:14.360 — 01:53:32.010 · Speaker 1

Even if you get it, it probably don't taste as sweet as you think it's going to taste. And peace is an inside job. No mediation. No judge can right your perceived wrongs. And to me,

01:53:33.210 — 01:54:09.130 · Speaker 1

the sort of like the answer to the question I would have given if asked was, look, the reason why you're going to ask what his needs are is because you're smart. You're not here to prove a point. You're here to get yours. And what the best mediator that I know. My top choice. Always. Sam Coletti. What he says, you know, is that we've got to go in and think about what you want and what he wants, because you got to know that's like in what is that the art of your book?

Um, you know, something in there says something like, no, your opponent. Right. And nobody's in a better position than you, sis, to know the opponent.

01:54:09.170 — 01:54:11.130 · Speaker 2

Keep your friends, close your enemies closer.

01:54:11.170 — 01:55:16.390 · Speaker 1

Right. What does he want? What do you want? And keep that the focus. Because you're smart and it's the the most efficient, most effective way to get to what you want. Right. And so it's like I think Sam and mediation in the whole thing. It's some idea of look, the the pain and the justice seeking and the why should I give a about what he wants is something like, if I could, I'm envisioning like putting it in a jar, like a cookie jar, putting the lid on it and sticking it on the shelf.

You're going to heal through that later. Because I think and women, we do a crappy our job at this of getting prepared and being strategic about getting what you need and what your kids need to move on with life. Right? And if you go in there to mediation and you're like, no, he cheated on me like you've seen it, maybe like I'm going to take everything was his, you know, all of that kind of stuff.

You're you're more than likely going to cut your nose to spite your face.

01:55:16.950 — 01:55:20.430 · Speaker 2

My law partner, Lee De La Rosa, who's a fabulous attorney.

01:55:20.470 — 01:55:21.070 · Speaker 1

Oh, she's so good.

01:55:21.110 — 01:56:12.040 · Speaker 2

She loves going to court. And I love having a law partner. And she's right next door to me at work. You know, I can knock on my wall, and that's when she hears it. Um, her take on this is there are some people in some situations where they really just need the catharsis of trial. And let's make a really important distinction here between the catharsis of trial and the potential for justice from a trial.

Because. Go to trial. Yeah. There's a good like it's a good bet that you can get your catharsis out of that. Are you going to get all the justice out of that that you wanted? Uh, maybe. Maybe not. Um, but.

01:56:12.280 — 01:56:13.280 · Speaker 4

When you don't have control.

01:56:13.280 — 01:56:13.640 · Speaker 1

Over it.

01:56:13.680 — 01:56:14.520 · Speaker 4

Right. Because you don't.

01:56:14.640 — 01:56:56.250 · Speaker 1

At least in mediation. That's a big thing, y'all. It's like, where's the nexus? Where's the the center of control? When you go to court and in Texas, it's wild. But for certain things we go to juries even. And Sam said bench trial earlier that means like to just a judge the the nexus the locus of control is within some fact finder, be it the judge or group of your peers.

When you're at mediation, you still have some nexus of control. Ultimately, at mediation, it can't happen without you. That's right. Right. So you maintain some control. And if you go to court, yeah, you're going to get catharsis, which I guess means like derivative benefit. Like, how would you explain the word catharsis if people.

01:56:56.250 — 01:56:57.170 · Speaker 7

Are not familiar.

01:56:57.330 — 01:57:03.850 · Speaker 2

That you whatever it is, that it's eating you up on the inside, that you cast it out?

01:57:03.890 — 01:57:16.530 · Speaker 1

Yeah. So but the thing is, then you're relying on a system that we all already know has its kinks at minimum is broken. You know, according to some parts of it are broken, I think probably according to all.

01:57:17.730 — 01:57:27.910 · Speaker 1

Um, you're relying on a judge who may have had a fight with their spouse this morning may have seen 14 cases like yours already today, and just sick of your shit before you even walk in the door.

01:57:28.150 — 01:57:36.870 · Speaker 2

Or may have seen a case earlier today that the facts were so much uglier and worse, that your case doesn't even really register on the radar.

01:57:36.910 — 01:57:50.350 · Speaker 1

Yeah, they've seen broken bones and drugs, and you're over here arguing about who has to take to cheerleading practice. They're like, go find some real problems. Please get out. I mean, we've both heard that before, right? Um, and so I think in mediation,

01:57:51.910 — 01:59:23.260 · Speaker 1

not coming in with the wish list. Right. Like a Christmas list. Like a must haves. But coming in with your intention, I guess. Developing that with your lawyer beforehand. Sam. Like what? Sort of like, um, really gotta have. There's a few backstop. Go. No. Go. We can't. I can't leave here without X things.

And then there's, like, this would be really nice and it's important to me, but I'm not going to die on the hill. And then maybe there'd be a list of, like, you know, this would be great if we could make it happen. Maybe that's how I would tell a client to do it and understand. Don't get married to anything on that paper, because when we get in there, it's going to go different, right?

Because you're talking about first off or second offer and finding what each other needs. So say we've done that right. We're at second offer in the mediation and an offer you all the way it kind of works is you're going to be at least in Texas, and a lot of places in two separate rooms, be it zoom rooms or whatever, and then papers or theoretical papers, emails and stuff go back and forth.

The mediator is like the messenger, okay. And the mediator has certain rules where he or she has to keep what you say confidential, unless you tell them they can share it. Right. Um, and they go back and forth trying to be the go between. So like after, you know, you're telling them, saying, come in at second offer clear on, um, you know, you're thinking about your needs and their needs.

And then. And then what happened? I guess then what happens?

01:59:23.580 — 02:00:15.380 · Speaker 2

Well, let me let me back up, because that's a that's a really good question. The, um, the place I start is I ask the clients, each of them individually. Have you ever been to mediation before? Usually the answer is no. And so I take it from there and say, okay, well, here's what we're here's what we're doing today.

We're going to settle your case today. We're here to settle the whole thing. We're going to do that by means of a mediated settlement agreement. The lawyers call that an MSA. The MSA is a binding contract that's irrevocable as soon as everybody signs it. And that's good because we want that finality. But you have to be careful and make sure you understand it.

And you've asked your lawyer every question about it before you sign it, because once you sign it, it's too late to change anything. And that the process by which we're going to get to that MSA is offer and counteroffer. The.

02:00:17.790 — 02:01:21.640 · Speaker 2

Like what it takes to get to a deal is usually several rounds of offer and counteroffer. Is it possible that we settle on somebodys second offer? Yeah. It's possible. Does it usually take three or 4 or 5? Like, yeah, it usually does. Um, but there's certain things that you can do whenever you receive an offer from the other side.

Number one is you can say yes to it, in which case. Fabulous. We have a deal. The second thing you can do is you can say no to it. The third thing you can do, and this is most of what mediation is about, is you can make a counteroffer. Every counteroffer conveys information. It's not just the information that's on the page.

Right. It's not just here's my proposal for custody. Here's my proposal for child support. Here's my proposal and property division. Those things are all there. But the the the in-between, the lines information is really important. And the here's how offer two is different from offer one that's super important to why.

And that's where your mediator comes in.

02:01:21.680 — 02:01:21.880 · Speaker 1

Yeah.

02:01:21.880 — 02:02:02.840 · Speaker 2

Why is it that is I think one of the most critical jobs of the mediator is to help the parties and their attorneys interpret. What do we glean from the fact that in round one, husband was saying this, this and this, but then in round two, he's moved on this issue and that issue, but he's standing pat on this issue.

And what does that tell us about what we could do in our next offer? What does that tell us about what their needs are? Right. What, because the other side is going to give us clues throughout the day if we keep making offers?

02:02:04.400 — 02:04:33.130 · Speaker 2

Um, the not only does every offer convey information, but if you let the Offers. Do the talking in mediation. What I find is if you can just keep it going, just keep the offers coming. That usually you're going to get where you're going. There's there's some there's some kind of special magic in that process.

And you know, if we pull back the curtain and try to examine it a little bit more, um, what's what's really happening, what really, I think to some extent explains the magic of mediation is that the deeper you get into it, the more offers into it you are, the more you're getting a clear understanding of what the other side's needs are.

And at the same time, you're also deepening, sharpening your understanding of what your own needs are. And so as the offers come back and forth and back and forth, um, we're really drilling down on the most important things and making sure that those are in place and and giving and making compromises on the things that we know are not critical.

Um, and so that's how that's how we get there. And I always make a point of emphasis on there's also a fourth thing that you can do in mediation, and that is you can say, hey, Sam, uh, I don't think we're making any progress here. I want to go home. And you could do that. And that underscores the voluntariness of the mediation process.

Yes. Some counties have requirements that, yes, you need to go to mediation before trial or else, blah, blah, blah. And but ultimately it is a voluntary process because either you're going to sign a deal and have it done or not, and not is a choice that you can make. Um, as you alluded to earlier, there's also a few layers of confidentiality in the mediation process.

Number one being that what you do in mediation and the offers that you make between you and your spouse are not admissible in court. So that means that during the day of mediation, you can be more creative, more flexible, more generous in your offers, and you don't have to worry about that coming back to bite you later.

Like if you.

02:04:33.730 — 02:04:50.170 · Speaker 1

Like, say that you offer it. Okay. Actually, he could have the kids primarily, so long as he still pays me child support. He can't then turn around and use that on you as an offer and saying like, make that. Tell the judge oh, she didn't actually want the kid. She was willing to give him up at mediation.

02:04:50.170 — 02:05:25.780 · Speaker 2

Exactly. It protects you from exactly that kind of occurrence. Um, the what that also does another way of saying that is that if you don't settle, you have the ability to go to court and argue your case. However, you and your lawyer think is best, you will not be held back by anything that you may have said or may have offered in mediation.

So it preserves your ability to negotiate creatively and generously today, and preserves your ability to go to trial and fight for what you need if you have to.

02:05:25.820 — 02:05:35.260 · Speaker 1

Well, and Sam, is it correct that most cases go to mediation and for family law in most cases settle at mediation?

02:05:35.300 — 02:05:37.740 · Speaker 2

Oh yeah. Vast majority I'd say 90% plus.

02:05:37.780 — 02:05:38.700 · Speaker 1

90, 90 plus.

02:05:38.700 — 02:09:02.259 · Speaker 2

Percent for sure on divorces. Right. So and here's I think something that's, that's important that I've talked to other lawyers about, you know, pretty consistently. And that is divorces as hard as they can be. And sometimes they are really hard. There is a fundamental dynamic of two people who realize that we just need to get unhitched from each other.

It's not working out, and that creates a natural tendency towards finding a way to make compromises to get it done. You know, if both if both people see like this is not a tenable relationship anymore, I gotta get out. Um, then, yeah, you may still have your disagreements. I mean, there's always going to be some disagreements, right?

Um, but that need to. Okay. But, yeah, I got to just close the book on this thing and so I can move to my next thing. Um, there. There's that. It creates that dynamic towards finding ways to settle. Contrast that with a modification case. So a modification case is where you've already gotten divorced or you've already gotten a final custody order.

And maybe a few years have gone by. And what you decided on or what the judge ruled for you in your divorce or your original custody matter. It's just really not working out anymore. And there may be many reasons for that. Maybe something's changed. Um, and it's just it's just not a workable situation anymore.

Or it's just not. It's not working for the kids anymore. Mm. Um, and so a modification case is a is a new lawsuit, a post-divorce lawsuit where you're coming to the court and saying, judge, yes, we had this order from however many years ago, and it's just not working. And we need these certain things change.

And here's how we'd like for you to change it. And we think that these things are going to be, uh, in the best interest of our kids. Um, and what happens when you file a modification case is in many cases, the other side's going to just file a counter modification and say, oh, you want those things change? Well, I want this thing and this thing and this thing changed.

Um, and the problem or the difficulty? Let me call it the difficulty with modification cases is you've already done this once and it was probably not easy. And so now you're in the situation where one side or both is saying, yeah, screw all that. Let's do it again. And I want things to be different this time.

And to a certain extent, it feels like you're having the same fight all over again. And probably neither one of you really want that. But it you may be feeling like I know. No, really, something's got to change here. So as opposed to the divorce that has that dynamic of coming together because we both see that we need to get unhitched in a modification case, you've just kind of got like, look, one person's usually saying like, we need to change this, that and the other, and the other person is like, no.

Or they're like, oh, really? Well, I want to change that, this and that. And so instead of there being any kind of coming together, it's more just like you're just butting heads.

02:09:02.299 — 02:10:21.250 · Speaker 1

Well, the difference with the custody modification is, it's like, look, we are ready to rumble, right? We've already been there. We've already been through a lawsuit. We know it really sucks and we're willing to do that again. And it's only about the kids, and people are willing to do anything for their kids if they think it's what's best for them.

And so there's this sort of go no go. It's like, look, I want this thing, you want this, you don't want this thing. We're going to fight. And I think that people who are not in that sort of like war battle mentality, they just work it out and we never hear from them in our offices. They just like, kind of do their own side deals because you can agree to whatever you want.

Yeah, outside of the orders. But I think absolutely. Um, modification mediations can be a lot shorter. Like, I want this, I want that, I'm not willing to move. I'm not willing to move. Okay. Let's go home. We didn't even make it to lunch. I mean, um, I've done that before, and I think it's a very different perspective depending on which one you're going to do.

But now, Sam, I've got a couple questions for you. Just kind of rapid fire. I'm thinking that can help people understand, like, um, if I go to mediation. Will my case be cheaper.

02:10:21.410 — 02:11:12.350 · Speaker 2

As opposed to going to trial? Almost certainly. If you settle in mediation, what does that mean? It means that you don't have to pay your lawyer. Not just for the days in court, but for all the prep that they have to do to get ready for court. I mean, we're talking so many hours. The general rule of thumb that we really get taught starting in law school, um, if not, and if not, then at least when we're baby attorneys is probably to be adequately prepared for trial.

You need to be spending twice as many hours prepping as you anticipate being in court. So if you're going to have a case where it's a set for a two day trial and that's eight hours a day, so you got 16 hours of trial, you better be putting in 32 hours of prep. And boy, does that add up at 300 or 400 $500 an hour and beyond.

02:11:12.550 — 02:11:24.430 · Speaker 1

Do both, like amicable cases and contentious cases. Need to go to mediation or is it? Or do you have to be amicable to go to mediation?

02:11:25.110 — 02:11:30.230 · Speaker 2

All kinds of cases can go to mediation. All kinds of cases can settle in mediation.

02:11:31.310 — 02:11:37.550 · Speaker 2

Amicable cases sometimes don't even have to go to mediation. The,

02:11:39.270 — 02:11:50.950 · Speaker 2

uh, it's not atypical in a situation in a case where people are starting out saying, we want to do this amicably, to actually only have one lawyer hired by one side, and

02:11:52.030 — 02:12:06.359 · Speaker 2

you kind of come up with your deal and tell your lawyer, hey, here's basically what we want it to say, and they may have a little bit of input and you're able to get that done really without a whole lot of back and forth. Those happen. Um, if you have a

02:12:07.560 — 02:14:07.630 · Speaker 2

amicable case, but maybe it's got some complication, maybe it's got some complexity, maybe some some things happen that that somebody, you know, either side didn't anticipate. And we got maybe just a little bit of struggle trying to get it done. Uh, those cases are perfect for mediation because usually you can, in mediation really just distill down what are the things that are most important, what are the things that are need to haves?

Um, and let's check those boxes. Um, and, and then, you know, those are, those are usually relatively easy to get settled in mediation. Now your contentious cases heighten. Yeah. When when you're just, you just really don't get along and it's, like, kind of ugly. Um, look, those are not a lost cause by any means.

I have had the experience many times of lawyers apologizing to me as a mediator before they even come to mediation. They'll call me the day before and they're like, Sam, I'm sorry. I'm bringing you this case. I don't think there's any way we're going to settle this thing. These people are just at each other's throats.

Um, I just I can't see how we're going to get it done, but we, you know, we appreciate your, uh, your efforts. Um, and then we go in there the next day, and we get it settled. Yeah. And they're just like, oh, my God, I don't know how you did that. I don't know how it came together. Um, and so that's the but that's the beauty and that's the magic of mediation is, um, there's also something about just having both lawyers and both clients and a mediator all focused on that problem and finding ways to get it solved for an entire day.

And with, with some, you know, a little feeling of of time pressure and a little feeling of money. This is our opportunity to be done.

02:14:07.990 — 02:14:40.070 · Speaker 1

Well, I think just the the saving money. Nothing like the threat of tens of thousands of dollars of going to court to get you to finally give in. You know, I've heard it said that like, basically, you know, you've made a good deal when everybody hates it because everybody's had to compromise and get there.

Now, another question, Sam, would be people say to me, and I hear it online all the time where it's like, oh, we're not going to hire lawyers, we're just going to go to mediation. So this idea of like a pre lawsuit mediation, there's no lawyers and just a mediator. Is that a thing?

02:14:40.430 — 02:15:00.360 · Speaker 2

That is definitely a thing. Depending on where you live in Texas that has not really so much been a thing. Um, certainly in California. Uh, it is. I know in Canada it is. Um, but that's actually something that I'm trying to launch right now.

02:15:00.400 — 02:15:07.280 · Speaker 1

Yeah. Say more, because I know you'd mentioned that you've got a new, I think, even new to me. I don't know if I've heard you talk about this. What's the new thing you've got cooking?

02:15:07.320 — 02:17:38.230 · Speaker 2

Yeah. So what I'm coming out with now is called mediation for Empowered Uncoupling. And it starts with the idea that I talked about before of don't give away your power. Right. Because the, um, the idea of it is it takes what I think are the best parts of the collaborative law process and brings it into a much more streamlined and less expensive process where the parties don't independently hire their own lawyers.

They just hire me or someone who's been training the way I have been as their mediator. And we have a special workbook that each party is going to going to work through, and they'll have their little homework assignments. That's, um. I'll have a meeting with each client individually at the beginning. Um, and then we'll start having joint sessions with both parties and me, the mediator, um, to start working through the various facets of the case.

In other words, talking through child custody. Talking about support. Talking about property division. And we may tackle just one piece of that in each meeting. Or maybe we'll make a whole lot of progress and we'll tackle more than one piece in one meeting. But the idea is that we have a series of relatively short meetings, maybe two hours, two and a half at the most, so that it doesn't turn into the the marathon day long going into the night mediations that you and I are familiar with.

10:00 Am. Those are hard. Um, and so it kind of makes it bite sized, bite sized pieces to get it done. And with the idea being that after a few joint sessions, we should be able to, uh, draw up a mediated settlement agreement. And because of the Highsmith case in Texas, now we are able to have parties negotiate and sign a mediated settlement agreement in their divorce without even having filed a divorce petition yet.

And so the process then would look like, okay, now we've got our mediated settlement agreement, and then one party or the other can then take that to a lawyer and have them turn it into a divorce decree, file their petition for them. Um, make sure the decree gets taken to the judge after the 60 day waiting period.

And, and also make sure that you get all of your other closing documents done, like your real estate deeds, your quadros, your powers of attorney to transfer vehicles, that kind of thing.

02:17:38.550 — 02:17:48.280 · Speaker 1

Yeah, well, that sounds like an amazing opportunity for people who can get there. Now. They don't have their own lawyer giving them independent counsel. Right. That's always going to be the contra. Um.

02:17:48.480 — 02:18:47.860 · Speaker 2

And there's nothing stopping them from doing that, right? You know, and that's one thing that I, that I actually put in my contract is you are always free to go get counsel from whatever lawyer you choose. And there may be times that as a mediator, I'm going to tell you, hey, you guys, this is actually a tricky legal issue, and you probably both ought to go talk to your own lawyer about it and just get some advice on it, and then come back and let's finish our process or go to your lawyers.

Maybe you even hire lawyers and you work on some of that stuff. Maybe there's like some discovery to do. Maybe we need some more information, some more documents on this or that and then come back. Because the thing is, like I've, I've only ever been the mediator at that point. And so I can still be your mediator.

So maybe you start off with me and you're unrepresented. You reach some crossroads, and then everybody hires the lawyers, but then you come back and we get it finished off? So that's totally a possibility too.

02:18:47.900 — 02:19:22.860 · Speaker 1

Oh, cool. Well, we'll put in the show notes. Sam, I think a lot of people are going to benefit from that. I know, I know that it's going to be an amazing opportunity for them to do that. So okay, a couple questions. We talk to everybody about switching gears a little bit for mediation. Okay. Um, the theme of our show is not saving it for later.

This idea that, like, your life doesn't have to medium suck. We're just, um, out there trying not to. To wait right later is a lie. All we ever have is now. So whenever you heard that, is there anything for you that's sort of. You're not saving it for later moment that comes to mind?

02:19:22.900 — 02:19:50.230 · Speaker 2

Yep. Um, the opportunity came up for me recently. Um, my, uh, my oldest daughter, who's 12, uh, she's gotten big into volleyball. She just loves it. She's going to a private school here in Austin called the the Austin Waldorf School. Um, she absolutely loves it. Um, I never would have thought that I would have a middle school aged kid who would come home and like, routinely say.

02:19:51.110 — 02:19:52.670 · Speaker 8

I love school. Oh.

02:19:52.830 — 02:20:02.870 · Speaker 2

And so it's just been such an amazing thing. Um, I got the opportunity to, um, to help coach her school volleyball team. And,

02:20:04.030 — 02:20:49.970 · Speaker 2

you know, you know, I'm a busy lawyer. I've got litigated cases, I've got mediations, I've got, you know, I'm a partner in a firm. So there's firm management stuff, there's marketing. There's all the things that we always have to do. Right. And I'm like, oh my God, can I really get away from work 2 or 3 times a week in the afternoon to get down and drive out to Oak Hill to Waldorf School?

And and it just hit me after talking to one of my buddies about it, he was just like, well, Sam, you got to do that. And I was like, you know what? You're right. I do have to do that because you know what? I'm probably not getting another chance. Yeah, this could be the one and only chat. And my daughter actually wants me to do it.

Like, how lucky am I that I have a 12, almost 13 year old who's like, yeah, dad, I'd love for you to coach our volleyball team. You know.

02:20:50.410 — 02:21:26.770 · Speaker 1

Like season that day. I mean, it's so interesting. Like, thank you for sharing that with me. And yes, of course, like, I, I you're the like, perfect dad to be like volleyball coach. Dad. Um, you know, for me, how this comes up is in the smallest of things. Sort of like in the bigger things, I don't know, in my own brain, I'm a little bit more likely to take some big step than these little things.

This came up for me. I went to the Con Street festival this weekend with my little four year old with Penny, and I walked past one of the vendors and I heard this sound and my head was whipped like like whipped back around, but like in slo mo, like.

02:21:26.810 — 02:21:27.250 · Speaker 7

Ooh.

02:21:27.850 — 02:22:32.340 · Speaker 1

And I heard the most beautiful wind chime sound. Very robust, like round pregnant tone out of this thing. And oh, it just like, caught my heart. And I looked at it and I thought, hmm, a couple hundred dollars. Like, I don't know, I don't really have a hook in my house. Like, where am I going to hang up a wind chime, I don't know.

Dah dah dah. And and I realized I went walking about. And when I came back by, I stopped and I said, I'm taking that. And the little like, lotus stained glass in the window. And I realized something in me equated wind chimes and that sound, that beautiful sound with other people. That's not a me thing. Like, how am I going to have stuff in my yard?

I don't know how to do that. It's like sort of this wonder, whimsy, fun thing. It's not practical. Don't need it. You know, we have a wind chime because you like it. You like the sound of that sound. And I took that thing home and it's like it was my own. I'm not saving when in my mind, I guess I was someday going to become a wind chime person.

That day was in that moment. So like a little one for me.

02:22:32.340 — 02:22:39.790 · Speaker 2

I have a question for you. Oh, was that a music of the spheres? Wind chime, the Austin company that makes them locally.

02:22:39.830 — 02:22:54.510 · Speaker 1

Oh it was. I don't think so. It was an independent lady. The artist was there who'd made it and had this, like, resin glass, um, doohickey hanging in the middle that did the thing. But it sounds like maybe I maybe I'm about to become wind chime obsessed.

02:22:54.510 — 02:23:44.370 · Speaker 2

I need to know you may. And this is so funny that you're saying this now because, um, my wife and I, uh, celebrated our 15th anniversary this past May, and, um, what I got her as an anniversary present was this beautiful, just perfect sounding wind chime. Ooh. And it's now hanging in our front yard, and it's amazing.

And she loves it. Um, and she, uh, she had, you know, she had. And I hadn't noticed over the years. Like, she would be like, oh, those wind chimes are so pretty, you know? And I was like, you know, someday I'm gonna. I'm gonna get her as a gift. Like, just a really good wind chime. Um. And I did it. And it's just it's so perfect.

And the fact that you had that same recent experience of just being like.

02:23:44.410 — 02:23:44.770 · Speaker 8

Oh.

02:23:44.810 — 02:23:53.810 · Speaker 2

I really need that, even though it's something that's totally just whimsical and not necessary in any way. Um, but, uh, yeah.

02:23:53.850 — 02:24:15.730 · Speaker 1

So more of our layers, Sam. Yeah. Um, yeah, I'm going to think I'm going to think of that whole thing like she gets to think about, like, your love and your 15 years every time she hears that little sound. Yeah. So sweet. Okay, what about what's shaken you? So this is. I love to know, like, books, a quote, a podcast, something you're into that maybe our audience would want to check out.

02:24:16.210 — 02:24:16.530 · Speaker 8

Mhm.

02:24:16.570 — 02:26:34.089 · Speaker 2

So I'm reading this book right now. I'm about two thirds through it. It's called The Undoing Project by Michael Lewis. He's the same guy that wrote, uh, Moneyball. Um, anyway, uh, fascinating book so far. Um, one of the basically what it's about is these, uh, these two, To psychologists who essentially back in the 60s and 70s, invented the field of behavioral economics, in other words.

So they were studying like, why do human beings make the decisions that they make? What causes them to, um, to make judgments about certain things that, uh, you know, maybe we can measure the probability of it in real life, or maybe it defies being measured for some reason, but they're just trying to, like, get out.

Like what makes human beings tick. As far as the, uh, the decisions that they make about things. Um, and so, uh, incredible read. Um, but one of the, uh, there was an analogy in this that one of the, uh, professors used, um, and the context of it was, uh, these guys were both, um, these guys both lived in Israel real.

In the late 60s. Super tumultuous time over there. And you know, everyone. Every man was in the Israeli army and got called up to do stuff, uh, with some frequency. Um, but the one of the things that was happening then was Israel as a country was trying to kind of improve and tighten up their agricultural practices.

And so they would send folks out to the farmers to tell them, like, hey, we're not going to do this kind of farming this way anymore. We're going to we're changing techniques. And and here's what we need you to start doing now. Um, and so the the problem was presented of how do we get these farmers to actually do what we need them to do here, because they're often kind of set in their ways, and they know how to do it one way, and they don't know how to do it this new way.

Um, and what, uh, what kind of came out of that was

02:26:35.770 — 02:26:46.410 · Speaker 2

this idea that, you know, basically there's there's two ways you can go about it. Either you can go in there and, and kind of just tell them that they have to and threaten punishments if.

02:26:46.410 — 02:26:47.090 · Speaker 8

They don't.

02:26:47.170 — 02:27:07.210 · Speaker 2

You know, you got to do it or else, um, or you can take a totally different approach, which would be talk to the farmers about what are their objections to it, what is the thing that's getting in the way for you here? What is what is the thing that you're worried will happen if and?

02:27:09.650 — 02:27:24.610 · Speaker 2

He talked about the metaphor of imagine a wooden plank that's being held in place by two springs on either end, spring on either end. Right. And your job is you need to make that plank move one way or the other.

02:27:25.850 — 02:27:38.060 · Speaker 2

There's a couple of ways to do it. One way is you could tighten the spring on one side, and that'll push the board one way. Or you could tighten the spring on the other side, and that'll push it the other way.

02:27:39.220 — 02:28:10.260 · Speaker 2

The other angle is you could loosen the spring on one end and that'll cause it to move, too. Or you could loosen the spring on the other end. That'll cause it to move the opposite direction. And so what that illustrates is there's more than one way to make something move. But in this case, one way involves increasing the total tension in the system.

And the other way involves decreasing the total tension in the system.

02:28:10.380 — 02:28:10.860 · Speaker 8

Hmm.

02:28:11.340 — 02:28:13.260 · Speaker 2

Human beings work the same way.

02:28:14.420 — 02:28:32.639 · Speaker 2

If you take the approach of increasing the tension on the system, you have to do it this way. There's no other choice. If you don't, then this this is not going to happen. And these are all going to be bad results for you. Like, yeah, you can get people to move doing that sometimes. But boy, does that increase the tension in the system.

Or

02:28:33.760 — 02:28:54.560 · Speaker 2

you can come out the other way, you know. Well, what are you what are you worried is going to happen if the other person gets this thing? Where do you worry it is going to happen if you don't get this thing and approach it from that angle and be curious what happens then? We're decreasing the tension in the system, right?

02:28:54.600 — 02:28:55.960 · Speaker 1

Yeah. Sounds like what you're doing.

02:28:55.960 — 02:28:57.680 · Speaker 2

And guess which one works better. Yeah.

02:28:57.760 — 02:28:58.600 · Speaker 1

Increasing it.

02:28:58.600 — 02:29:03.680 · Speaker 2

Nobody likes. No, it's a metaphor for mediation. And what I'm trying to do in every mediation.

02:29:03.720 — 02:29:18.320 · Speaker 1

Oh, I love that. Sounds like a good one to check out. Okay, what about your dominant thought? What I found that we think in, you know, week, couple weeks, something that's been on your mind is there have been sort of like one thing you've been thinking about.

02:29:18.360 — 02:29:22.200 · Speaker 2

I had a really good therapy session the other day, and

02:29:23.720 — 02:29:32.009 · Speaker 2

what I got out of that was that I get to remember

02:29:33.530 — 02:30:09.169 · Speaker 2

that version of me that I have a deep respect and reverence for, and know that that version of me is always here. And also I get to continue to be in conversation with those parts of me that maybe I'm embarrassed about, that maybe I'm ashamed of that, maybe I just I don't like that part of me. Um, and the two get to coexist, right?

And

02:30:10.170 — 02:30:34.470 · Speaker 2

when, when when one is kind of screaming for my attention, you know, I get to give it some attention. Um, but also, I get to maintain the perspective that that that highest, best, most good and pure version of me is the one that's ultimately calling the shots.

02:30:34.510 — 02:30:35.670 · Speaker 7

They're in charge now.

02:30:35.710 — 02:30:42.670 · Speaker 1

Yeah, yeah. I think, you know, the difficulty for me along that vein is like not making every every other little part wrong.

02:30:42.710 — 02:30:43.430 · Speaker 2

Exactly.

02:30:43.470 — 02:30:48.990 · Speaker 1

And thanking those parts of us that are old and have kept us safe for a long time, thanking them for their role.

02:30:49.030 — 02:30:49.510 · Speaker 7

Yeah.

02:30:49.550 — 02:30:57.910 · Speaker 1

Um, and also releasing them to other things. Okay. Last one. Sam. All right. If you only had one piece of advice to give the women of divorce land.

02:30:57.910 — 02:30:58.350 · Speaker 7

Here.

02:30:58.390 — 02:31:01.710 · Speaker 1

Those going through or even beyond divorce.

02:31:01.710 — 02:31:02.870 · Speaker 7

What would you tell them?

02:31:03.070 — 02:31:15.910 · Speaker 2

Don't give away your power and get real clear on what you want out of life, what you want your life to look like post-divorce. And let that be your North Star.

02:31:17.790 — 02:31:18.470 · Speaker 7

Thanks.

02:31:18.590 — 02:31:19.310 · Speaker 2

Thank you. Anna.

02:31:19.390 — 02:31:21.070 · Speaker 9

That's so great. It's been great being with you.