Alex Hunt:
Welcome back to The Texas Family Lawyer Podcast. My name is Alex Hunt with Hunt Law Firm. We serve the Greater Houston area. We have offices in Katy, Cypress, Sugarland and League City, and today we're going to jump right into it. I'm here with Melissa Masoom, an attorney at Hunt Law Firm, and we're going to be talking a little bit about what to expect in your family law or divorce mediation. Welcome, Melissa.
Melissa Masoom:
Hi.
Alex Hunt:
All right. Tell us an overview, what is mediation, and what should clients expect at mediation?
Melissa Masoom:
So Alex, mediation is a process that we employ in a lot of our family law cases, and it allows for the clients to actually settle their case outside of court. So it's a process that involves a mutual mediator and usually it's done by Zoom or in person. The clients are with their attorneys only in the room and the mediator goes back and forth. The clients do not have to see each other, and it's a really great way to stay out of court. You get to be creative with your settlement, and you get a lot of control over what's happening.
Alex Hunt:
Yeah, and I think that's important that I think a lot of people think of mediation, they think we're going to have a meeting and it's going to be me, my spouse, the lawyers, we're all going to be sitting in the same room. It's going to be very acrimonious. It's going to be tense. In Texas, at least, at least in our practice, that is extraordinarily rare where all the parties are in one room. Instead, the mediator does what we call shuttle diplomacy, which is where they're going back and forth in between the two rooms. After COVID, they even are able to do that in breakout rooms. So the parties, sure enough, usually don't even see each other during the process at all. Tell me, you're in a mediation, how does the mediation start? Mediator walks into the room, what are some things people need to know?
Melissa Masoom:
So usually, Alex, the mediator goes to whoever filed the case first, so the Petitioner, and usually that's when the client gets to tell their story. They get to tell the mediator what's happened so far, what they're there for, what they want to have happen in this mediation. The mediator hears them out, and usually they take a first offer over to the second room. Then that room gets to tell their story and gets to listen to the offer and do a counter offer if needed. The mediator just goes back and forth trying to settle the case.
Alex Hunt:
In this podcast we're talking a little bit about what to expect in mediation and a couple podcasts from now, podcast episode number four, we're going to be talking about how you can prepare for your family law mediation, which could not be more important in order to have a successful mediation. When you have a first offer, we go back and forth. Eventually, the sides start on different sides of the field. They eventually, hopefully, meet somewhere in the middle. They reach an agreement. What is the final step in a mediation?
Melissa Masoom:
So usually the mediator has a document called mediated settlement agreement, and it has very specific language in there that makes it a mediated settlement agreement. So that language actually protects the agreement from being overturned by the court. So that agreement is drafted up. Both sides review it. If there are changes, they make the changes and then it gets signed. Once it gets signed, it gets actually filed with the court.
Alex Hunt:
Okay, client comes back to us the next day after mediation, "I can't believe what I just did." What can we say to that client?
Melissa Masoom:
Well, usually, we have to tell them, "Too bad." Usually, I like to make sure that the client knows that what they're signing is completely irrevocable. They cannot take it back once they sign it. So I make sure they know that I'm not pressuring them to sign it. Neither is the mediator. They need to understand what they're signing because the next morning they can't take it back. So that mediated settlement agreement, it's important because it solidifies their agreement. Just like our client can't take it back, thankfully, the other side can't take it back, so it works that way. So if a client wants to do that after being advised, it's unfortunate, but they can't.
Alex Hunt:
That's one of the reasons that we are incredibly clear with our clients that if they are going to sign on the dotted line that they need to be 100% sure that it's what they want. There are still some additional steps to be taken after mediation, but they're locked in and it's irrevocable. For family law practitioners that might be watching, they know this. Texas Supreme Court case In re Stephanie Lee says that if you have a mediated settlement agreement, it's going to overrule whatever the court thinks with regard to your kids. Parents have a right to make decisions in mediation and the court doesn't get to say no. Then the In re Minix case, which makes these mediated settlement agreements just under lock and key, there's just no way to get out of them. So one thing that we make sure that our clients know above all else is you better be sure because once you sign it's locked in. So next question, when should we go to mediation? Or once you come, you hire us as your divorce lawyer, how soon afterwards do we need to go to mediation?
Melissa Masoom:
Well, usually, you can go right after you file a case. So sometimes in the divorce process or a child custody process, people know that they need something right away, and mediation is a great way to get into a room and get an agreement for things that you need as soon as the case is filed. So for a divorce situation where they don't know who's paying the bills, for instance, or who's going to live where, mediation is where they would have that agreement for child custody, child support, all of that can be dealt with right away and you can get a temporary agreement. You can also get a final agreement if everyone's there, so any time right after filing the case.
Alex Hunt:
If you're watching this as a video, we're going to put up on the screen our Texas child custody process. We also have this flowchart as Texas divorce process, contested divorce process, something that's on our website, familylawyerkaty.com. Click on Resources tab, and it walks you through a typical suit affecting the parent-child relationship or a child custody case. It'll take you through a divorce case from start to finish. But if you look on there, there are two circles: one for mediation for temporary orders, one mediation for final orders. If your case is one of those that requires a mediation for temporary orders, in all likelihood you might be going to mediation twice, but you have different goals at each of those. The first one, mediation for temporary orders, you're really just trying to put some rules in place during the pendency of the case.
Say you're getting divorced, when you get divorced, when the marriage relationship breaks down, it's like the Wild West. You're unable to reach agreements on things relating to your kids or who's paying what bills, who's living where, and the purpose of temporary orders is to help maintain the status quo for the parties. One way you can do that is by going to court. You can have a temporary orders hearing, it's like a mini trial. But the best option for most people is trying to reach some amicable agreement in mediation. Then the same thing for mediation for final orders. You could go to a trial. It's expensive, it's stressful, and it really puts a strain if you have kids on the co-parenting relationship, but a mediation helps you keep control.
Those are the two instances and you can go and download the full flowchart on our website familylawyerkaty.com. So let's talk a little bit about, before we wrap up, why would we go to mediation? Why don't we just go to a temporary orders hearing? Why don't we go straight to a final trial? I'll start with one and then we're going to go through some pros and cons. But the first one, the most simple one is that most of the courts in Harris County, Fort Bend County, Waller County, especially when you have kids, require you to go to mediation. Some of the courts even, before you can even get a temporary orders hearing date, you have to go to mediation. So part of it is just checking the box of what the court requires, but it certainly goes beyond that. In your view, what are some of the benefits and the benefits of going to mediation in a family law case?
Melissa Masoom:
That's a really good question. I usually tell my clients this is a great opportunity for you to actually have control over your case, because once you walk into court... I always say, "If you're walking into court, you've already lost because now you're taking the control and giving it to the judge. You don't know if that judge is having a good day, a bad day. If that judge is going to believe what you're saying or believe your spouse or the other parents. So you really need to go to mediation to keep that control." So that's one of the main things I like to say to convince my clients that mediation is a good idea.
Alex Hunt:
The other thing is that especially if you're going for final orders, it is final. It's a final resolution of all of the disputes, that can also be a con, though, is that folks might have other things that they want to bring before the court. The only way to get an agreement is if they settle everything up, and so often we see in mediation, not everybody's going to get 100% of what they want. It's very rare that one party is skipping out happy out of mediation, and the other one feels like they got a raw deal. It's a give and take. What else, particularly around the cost of mediation, what are some pros and some cons?
Melissa Masoom:
Divorce child custody cases can get very expensive. What we see is the most expensive cases are one is we end up having to go to court because you're preparing for court, you're sitting there in court. Sometimes you get reset, so you don't even go forward the day you're supposed to go forward. Whereas, mediation, it's one day. Sometimes it's half a day, and you are paying for your attorney's time and it's just a lot more cost-effective. So if you're thinking of your finances and thinking of how expensive your case is going to be, mediation is definitely the way to go and at least try it.
Alex Hunt:
Certainly, and in mediation, you're paying for your attorney's time, your spouse or the other party is paying for their attorney's time, you're paying for a mediator. Often the mediator is a former judge or a family law attorney, somebody who knows the law. One misconception is that this mediation is like a court date. Even if it's a judge, the judge isn't necessarily deciding anything. Judges usually just make good mediators because they're able to put on their judge hat and say if you go to court, you're not going to be successful or they are going to be successful and help you to analyze the case, and that usually helps you reach an agreement. One of the other benefits that I've seen, it's more important for some clients than others, is this is a private process. If you decide not to reach an agreement in mediation, tell me a little bit about, is that process private? Is that public? Tell me more about that.
Melissa Masoom:
So one of the things a mediator will start with when they start their mediation is telling you that this is a completely confidential process. So everything that happens in your room, everything that happens in the other room is confidential. So you don't know what's happening in that room unless they've authorized the mediator to come over. The mediator can't testify in court. They can't talk about what's happened. So if you need to talk to your attorney, the mediator can be in there. So it's great because they're not putting everything out there. Now with Zoom, these courts are getting to broadcast over YouTube and people can get a link and be in your business and be in your case. So this is a lot more ideal if you want to keep everything private in your case.
Alex Hunt:
Yeah, I don't think a lot of people realize that, especially since COVID is that a lot of courts are still on Zoom, a lot of courts, because in Texas we have open courts. So when it's on Zoom, if they're not allowing people to physically come into the courtroom, they need to have a public link that anybody can log into, and it puts your business out there for everybody to see. So the last piece, and this is really important in cases that are involving kids, is when you reach a mediated settlement agreement, it sets a different tone and tenor for what happens afterwards with your co-parent. Talk a little bit about that.
Melissa Masoom:
So trial or going to court, it's stressful, and you're going to have to be aggressive in order to get what you need. So that means putting a lot of your co-parent's business out there and to make sure that you're getting what you want out of this case. It's very hard to co-parent with somebody after you've attacked them in court because you can't just put that aside. No matter what the judge says or what the judge decides after that hearing is done or after that trial is done, now you're having to coordinate with this parent about school activities or if your child is sick and you're going to have some resentment, and that's not great for the children, right?
Alex Hunt:
Absolutely.
Melissa Masoom:
Because you're going to have a hard time co-parenting with someone that you attacked, and that's why mediation is great because you don't have to do that. It's a different tone. You're actually trying to work with someone. I always have clients surprised that the other side is being so reasonable; whereas, in court they might not have been so reasonable or they don't get a chance to do that and see that side of the co-parent.
Alex Hunt:
Some of the advice that I'll give, even family and friends say we're not going to represent them or they live in a different part of the state or in the country, is when you're looking for a divorce lawyer or a family lawyer, look for somebody who's going to be solutions oriented, resolution oriented, somebody who's going to look for an amicable solution. But if that fails, it's going to be ready and equipped to go to court. So a lot of times we'll get folks that will say, "I want a bulldog. I want somebody that's ready to fight. I want somebody that's aggressive."
Sometimes that's not best for your kids, it's not best for you, it's not best for your pocketbook. So having an attorney, and this is certainly our approach at Hunt Law Firm, is, we're going to be looking for solutions that are going to benefit our clients every step of the way. But in the background, we're going to be getting ready for court if and we have to do that. So if you're looking for a family lawyer, that is certainly... that would be my advice. Look for somebody who's going to find some solutions for you but that's going to be ready to fight if they need to. So tell me about a time that it's particularly important to get into mediation right away.
Melissa Masoom:
Well, Alex, sometimes in cases, in divorces or child custody cases, you need immediate relief. An example would be if you're a stay-at-home mom, you have no access to any of the money and you need to make sure that you can go get groceries and the bills are paid, so mediation is great. You can get in as quickly as you need to get in, and you get to resolve all those at least temporarily. So you don't have to think about all that as the rest of the process happens, which can take months. So now you have those guidelines put in place
Alex Hunt:
Sometimes we see folks when they come to us, they've been completely cut off, and they might need money for attorney's fees. They might need money for groceries, they might need money to pay the mortgage, and sometimes it takes a court in order to order the other person to play nice.
Melissa Masoom:
Right.
Alex Hunt:
But if you go to a mediation and you have a good mediator and they can tell the other side you don't want to go to court, especially having just cut this person off, and you can get some rules in place without having to have that tense process. All right. Tell me about what happens after mediation. You've signed your irrevocable mediated settlement agreement, you're done? You're done with the case.
Melissa Masoom:
No-
Alex Hunt:
Okay.
Melissa Masoom:
... you're not. So there's a few more steps in order to make sure everything gets handled. So the mediated settlement agreement gets filed with the court so the court can see that. Then one of the attorneys, usually the Petitioner's attorney, the person who filed, they get to draft up an order that the court will actually sign, which is what finalizes the entire case. Or if it's a temporary order, it's a temporary order. So that mediated settlement agreement gets to be turned into a document that's a lot more detailed and much longer. The court actually signs that and that's what finalizes the agreement.
Alex Hunt:
All right, Melissa, is there anything else that we need to know about mediation in Texas?
Melissa Masoom:
Well, Alex, we just talked about how important mediation is, and it's so important that me, you and the other senior associate, Margaret Tucker, are actually trained mediators. Even though we are litigators at heart and we're trained to be in court if needed, we believe in this process so much that we actually offer mediation services at Hunt Law Firm and have three great mediators that can take on these tough cases.
Alex Hunt:
I might be a little biased, but I think that litigators often make the best mediators because they're able to view the cases through that lens of what's going to happen if you go to court. So yeah, thanks for sharing that. I'll also share that at familylawyerkaty.com we have more information on the mediation process. We have information on child custody process, divorce flow charts, a lot more information, especially on the Resources tab on the top of our website. We're going to have more information about how to prepare for your family law mediation in a future episode. I'll be back with Melissa, but for now, Melissa, thanks for joining me.
Melissa Masoom:
Thank you.
Alex Hunt:
Take care.