For Better, Worse, Or Divorce Podcast

Walters Gilbreath attorneys Ryan Segall and Jessica Davis, both certified mediators within the firm, deep dive into the process of mediation within family law cases. Ryan and Jessica discuss when mediation works best, how they prepare clients and some key factors that lead to successful resolutions. From custody battles to property division, this episode is intended to be especially insightful for those interested in resolving their family law disputes outside of the courtroom.

Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Our partners are experienced trial attorneys who’ve been board-certified in family law by the Texas Board of Legal Specialization.

Ryan Segall: Welcome everybody. Thanks for tuning into the For Better, Worse, or Divorce podcast where we provide tips and insights on how to navigate divorce and child custody situations. I am Ryan Segall and today I am joined by my colleague and esteemed associate, Jessica Davis from our San Antonio office. Jessica and I are here to discuss mediations in family law. We’re both certified mediators and family law attorneys here at Walters Gilbreath. I thought it’d be nice to chat with you Jessica about mediation and what that is here in the family of law world. And how it can help people resolve their disputes. Welcome Jessica.

Jessica Davis: Thank you. And thank you for having me. It’s my first podcast.

Ryan Segall: Ever? Is it your first one ever? Wow. Okay.

Jessica Davis: Yeah, I’ve done some talks but never a podcast.

Ryan Segall: Well, I’m sure you’ll knock it out of the park. Give the people out there in the podcast world a little bit of background on yourself. How you got to where you are today.

Jessica Davis: My name is Jessica Davis. I’ve counseled at Walters Gilbreath. I have known Jake Gilbreath for a long time. I think the whole time I’ve been practicing law. I’ve been a family law attorney ever since I got out of law school. I think that’s longer than I care to admit, but maybe nine years now. I’ve been doing lots of complex high-net-worth divorce cases ever since I got out of school. Jake and I have worked together in the past. Now I’m as counsel at Walters Gilbreath. I don’t even think I could put a number on how many mediations I’ve been to. I tried to think it’s definitely in the couple hundreds. It’s a lot of mediations. I got certified to be a mediator last year. I’m looking forward to hopefully shifting to the mediator role on some of these.

Ryan Segall: Congratulations on your mediation certificate. I know you and I had talked before this. I recently got mine. I think we ended up going to the same certification school. Myself, I have handled countless mediations. When you fill out your board certification application you have to list them all. There was a lot to go through. I like to say that I’m probably in the hundreds maybe.

Jessica Davis: Yeah, I think it’s a lot. We mediate every case before we go to trial. Sometimes twice if we mediate temp orders. It’s definitely a lot. I feel like mediation is such a useful tool, but I think sometimes it’s a little misunderstood. I think people feel forced to go. But I for one am always staggered by the number of cases that do settle in mediation. Even ones where I would go in and tell you, “There’s zero chance this is going to settle today.” I feel like I get proven wrong so many times.

Ryan Segall: Touching on that because it is the same up here in the DFW area. Most of the courts, if not all the courts, require you to go to mediation before final trial. Some won’t even hear your case if you don’t go to mediation. Others you’ll get a limited time. You may get one hour aside or something like that. I understand why courts are doing it. They’re trying to get cases off their docket. But from your perspective how has that mediation tied into when you’re going to use mediation? When do you go to mediation? You mentioned you go to mediation for temp orders sometimes. How do you determine when you’re going to go to mediation?

Jessica Davis: I think what’s a little different in each of the counties we all practice in and I overlap a lot. I mostly practice in Travis County and Bear County where we don’t have that requirement for temporary orders to go to mediation, but Harris County does. I feel like I kind of have seen a little bit of different approaches to this. I’ve always felt like temporary orders, sometimes I get frustrated with the mediation requirement. Because I do feel like some things are so time sensitive and it does delay that hearing.

Ryan Segall: Don’t even know how it works to be honest on temp orders. I mean if you have an emergency. 

Jessica Davis: Sometimes I feel like what people want is so divergent in temporary orders that mediation is not helpful. I think I find that mediation for temporary orders is the most helpful when the parties just aren’t communicating really well. Adding in that third party person to work as a go-between and get everyone working on it at the same time is really helpful. If they can’t communicate very well or don’t want to, which is very fair, and we just need to get everyone sitting down and focused on the same issues at the same time. I think that’s what I find mediation can be the most helpful for temporary orders.

On final for full mediation on our cases we do in every case before we go to trial in all our counties. I think that every case should go to mediation. I say that because I have truly had cases where I thought there was absolutely zero chance that we would settle that have settled in mediation. I feel like even at the cases that don’t settle people have a sense of, “I’ve done everything I can.” Right before we go to court. I think that kind of gives everyone some peace of mind, because we all know that trial has the unfortunate effect of having a long-term impact on people in their relationships in a way that is not what anyone really wants. I think if things can settle at mediation we give it our best shot. It’s worth a try in every single case. I don’t ever think it’s a waste of time or money. I think it also narrows the issues a little bit too. Going into trial makes it more streamlined.

Ryan Segall: There’s a couple of things that I want to touch on that you talked about. Number one, I agree with you there’s a, “Hey, we reached a settlement. We can at least agree on at least one thing and start from there.” I had a mediation recently in which a client said, “I know that she’s never going to get what we’re offering at final trial, but I’m willing to give it to her just to have some sort of amicable relationship going forward.” Going to court and putting people on the witness stand and attorneys cross-examining them, it’s not going to be pretty. It never is. People are going to come out of that probably disliking each other. That’s just the nature of the business.

Whereas in mediation, not only is it a way to resolve the case amicably, but I also think it helps. We can kind of speak on this not only as attorneys representing clients in mediation but also as the mediators themselves. I think it helps to have that third party input on a case of, “Hey, here’s what could happen if you go to court.” Because in my experience sometimes it’s the opposing parties, sometimes it’s the opposing councils who are creating this divide between the parties. It may be beneficial to have a mediator come in and say, “Hey, this is what’s going to happen.” Because an attorney may be telling their client one thing and a mediator may have a very different opinion as to, “Hey, here are your risks of going into court. Here’s how we can settle this case.”

Jessica Davis: Yeah, I absolutely agree with you. I think that having an experienced mediator who can offer opinions can help to reinforce and keep everyone back in reality sometimes where people have strayed. I also think there’s value to hearing another person saying it. Your lawyer and of course you trust them and you have a great relationship, but sometimes I think that second opinion can really help put things in perspective. Another reason I love mediation and mediators especially is because I really think it’s like the two heads are better than one approach. Often in mediation we can come up with a creative solution to a problem that can make everyone a lot happier.

I always try to explain this, judges are getting just the very top of the facts of your life and how it all works together. They’re going to come up with just solutions that aren’t tailored necessarily to what’s going on in your life. They have these kinds of broad strokes approaches to possession and access and support. I think about rights and duties. I think in mediation we can address things a lot more specifically and in a detailed and creative way to help fit our client’s lives that judges just don’t have the time to devote to every case to do. I think that having a person who can say, “Hey, in my experience this is what a court’s going to do.” It is really valuable. But also having another mind that’s there to say, “Hey, maybe you guys haven’t thought about approaching this issue this way,” or, “What about this possession schedule, or, “This support scheme schematic.” I think that that’s really helpful.

Ryan Segall: I certainly agree with you on the creative aspect of mediation that you’re never going to get in trial. I mean trial is a judge is most likely going to rubber stamp, possession schedule one person’s primary, that’s that. Or as far as property goes they’re probably just going to order some sort of 50/50 or some sort of percentage split. That’s going to be that. Especially when there’s a house involved the courts are probably just going to order the house to be sold. Whereas mediation you can work creative solutions. One party can live in the house for a year and pay rent or whatever it is. You can kind of work for the best of everybody to try to get something done. I hear what you’re saying and I agree with you. Talk to me a little bit about prepping for mediation. How do you do it? What’s your approach? What do you kind get your clients to do?

Jessica Davis: I am team more preparation is better.

Ryan Segall: Hold on. Is there a team that’s no preparation?

Jessica Davis: From my experience in attending mediation. There has to be a team.

Ryan Segall: That’s fair.

Jessica Davis: That’s the only time where I feel like I’m waiting an awfully long time for that first offer.

Ryan Segall: That’s fair.

Jessica Davis: I am team more prep is better. I was actually just thinking about this. I draft a lot of orders for our firm. I feel like there’s so many cases where having a median settlement agreement that’s not specific cuts against us we end up arguing on the back end about terms if they’re not laid out. I feel like now I used to say, “Okay, just have a spreadsheet updated.” I always have a call with my clients and say, “This is how mediation works. It’s a binding irrevocable agreement. Be 100% sure before you sign it. If you’re tired, if you’re emotional, if you don’t want to sign it that day, there are options to maybe come back for a second day. We can’t undo them once they’re signed.” I always have that conversation early. I feel like it’s really important.

I also tell my clients, “Write down the three things that are non-negotiable for you so that we can do a gut check at the end of the day. That’s just like if we’ve compromised on one of those three things are you sure that you’re ready to sign that or have you just had a really long day. Do we need to table this and come back later?” I always tell them that just to keep things in perspective. Then I always do a spreadsheet with all of our assets and liabilities on it. I always update it the morning of, because the number of times clients have had auto payments process overnight is too high. 

Ryan Segall: Every time.

Jessica Davis: That credit card payment goes through and the bank balance is wrong. I always make them, they’re always probably annoyed with me, but I’m like, “8:00 in the morning, you need to be sending me screenshots of your accounts.” Then I like to do a pretty specific parenting plan now because I just feel like so many things get lost in the details. If you kind of just go in and say like, “Hey, this is our offer.” I think that you can end up having an agreement that you don’t like. I like to have a starting point personally. I also think if you’re going to have business terms or something like that sale of a business. I think having some more stipulated terms to kind of go in with is really helpful. Like I said, I’m team more prep rather than less. I just think that it’s a really long day. I tell this to everyone,  you just can’t understand how long and hard mediation is until you do it. I think that having more is always better.

Ryan Segall: Yeah, the team no prep sounds like a lot of fun. It sounds kind of nerve-wracking. Obviously going in there is beneficial to everybody. Because to your point if I go into mediation and let’s say we’re respondents. And just for the people out there who don’t know typically the party who is the petitioner whoever filed first they’re typically going to be sending the first offer in mediation. I’ve been in situations where we’ll go in there and mediation starts at 09:00 AM and it’s 11:00 AM and I still don’t even have an offer. Not only is it frustrating because you’re losing valuable time like you say, but you’re also not accomplishing anything. I’m sitting there with my clients, and don’t get me wrong, I love my clients, but they probably don’t want to just pay me to sit there and talk about things that we’ve already talked about.

Jessica Davis: They definitely have friends they like better who don’t charge them to hang out with them I think.

Ryan Segall: I would hope. I mean it’s probably debatable.

Jessica Davis: It’s really frustrating I think when we go in and we don’t get offers until 11:00 or so. I know everyone makes a crazy first offer, but offers that are just really unrealistic bother me. Because to me, it’s just a waste of time. I think we all know pretty well what we’re willing to settle for going into a case. I just don’t really see the point of spending time on something we know that other party’s not going to agree to.

Ryan Segall: I hear you on that. But here’s the problem, it happens every time. Every time one side will send some absurd offer. We’ll send some insane offer that both sides know neither side’s going to agree to. But it is part of this song and dance of negotiations and, “Oh, well now we came off this so much sort of deal.” It’s like, “Yeah, but your first offer was ludicrous.” Shout out to Luda.

Jessica Davis: I know. It’s crazy to me how it works. We all get those offers. But yes, I agree. I know there is a team no prep. I don’t advise joining that team. It does sound nice.

Ryan Segall: Sounds like just chaos. It sounds like you’re drinking beers the night before. 

Jessica Davis: Yes. I don’t know what you’re doing over here. I think that there’s definitely a world where we can all be more efficient. Because I can tell you the number of times I’ve been in mediation until 8:00, 09:00 at night. I just think that we could eliminate that a little bit. It is a long day for everyone.

Ryan Segall: I think what it really boils down to is hopefully everybody’s prepped. I don’t know how to do this, but I would love to fast forward these mediations to about 4:00 and just say, “Here’s my 4:30 offer. Let’s just get this done.” But that can never happen because everybody wants to send their initial offer, which no one is going to agree to. I’ve started at some point in these mediations, that’s what I’ll tell the mediator. I’ll say, “Hey, this is my 4:30 offer. This is our final offer. We’re not budging off of it.” And of course the other side will then want us to budge off it. But trying to fast forward things is sometimes beneficial. It saves everybody time and money. I think that can only happen when both sides are prepared.

And like you said, I always try to have client meetings at least a few days out from mediation. I go over the spreadsheet and make sure that clients understand, “Hey, here’s our initial offer”. I do the same thing with my clients. I have them list a couple things. I have them list what their goals are, what their kind of minimum that they’re going to take, and what their shooting for the stars offer is. Which we would call our initial offer. Because I want them to know, “Hey, here is the bare minimum of what you will agree to.” That way they go in with expectations of, “Hey, we can give up on this. We can horse trade this for that sort of deal.” That does give clients at least a semblance in a realistic expectation of going in of what they’re going to be giving up and what they’re shooting for and things like that. 

Every client asks me going in on these prep meetings. I get a standard question of, “How can we sway the mediator in our favor?” I say, “There’s no swaying of the mediator. The mediator is literally just going back and forth between two rooms and conveying offers.” A mediator is supposed to be a neutral party. Their job is just to get a deal done. I tell clients, “Look, the mediator is going to go into our room and tell us, ‘Here’s your risks and here’s why you should settle.’ And they’re going to do the same thing in the other room.” So it’s important for clients to kind of know what to expect. The mediator is not a judge. You don’t need to present evidence to them. Certainly people will do that and say, “Here’s why I’m doing XYZ.” And if you need to, great. But I think for the most part it should be, “Let’s convey our offer. Here’s a little bit of facts backing up why we’re doing it so that they convey that to the other side.” Then kind of go from there.

Jessica Davis: Yeah, I agree. I think that a lot of times it feels like it can feel like a mediator’s taking sides. I don’t think that that’s usually true. I was going to talk to you about this too. I think it’s overlooked a little bit sometimes when prepping clients. I’m trying to focus on this more myself; the ancillary issues outside of just the spreadsheet. I’m talking about refinancing the house, car loans, boat loans, things like that. The debt load, all of that. I feel like I have to open the door to clients and say, “Outside of just the property division what do you need to get done?” We can include those terms because a lot of times I feel like people want to come in and negotiate those after the fact. We don’t really have the ability to do that easily or the leverage really to do it at that point. So I think another good point for clients is to think through those beyond just the spreadsheet issues.

Ryan Segall: Touching on that, I’ve seen it countless times. I’ve seen attorneys that are guilty of this. I don’t like to reveal all my tricks here, but for those podcast subscribers and for those people who have made it this far, I feel I should at least give them a tip. When you’re doing property division you need to make sure you’re taking into account tax effects of things. Neither you or I are tax attorneys. Nothing in this podcast is to be construed as tax advice. But looking at 401k, versus a brokerage account 401k is a pre-tax account. That brokerage account or that savings account, that’s post-tax money. Brokerage account. What happens if there’s a bunch of capital gains or capital losses? How that’s split up. I mean you can be talking about literally tens, hundreds of thousands of dollars in taxes that are either left on the table or ignored for one reason or another.

Jessica Davis: The small businesses who have filed extensions on their tax returns haven’t filed looking down through October as the extension deadline. It’s important on your overall tax treatment too if you’re not just a straight up W-2 employee and you’re withholding to consider how you’re going to handle your taxes for the year of divorce. Because you don’t want to be staring down the barrel of a huge liability. I always tell clients if they have a CPA it’s a good idea to have that conversation before mediation. Business attorneys too, if you’re in a partnership or an LLC or something like that. It’s a good idea to have your business attorney weigh in on what your options are.

Another thing is with businesses a lot of times we’ve already gone through the process of assigning them a value and all these things. But sometimes there is some red tape on how we can transfer those interests or what we need to do. Where that’s concerned. To make sure that everything gets buttoned up there. I feel like that’s a good idea to just get that opinion going into mediation so you know what you need from the other side. It’s just difficult to do that after the fact. If we get an immediate settlement agreement to go back in time and do that it’s hard.

Ryan Segall: As we kind of joke about it, we’re not tax attorneys. We’re not giving tax advice. But it’s true. When you’re in mediation, I’m going to tell my client that too. I say, “Look, I can’t give you tax advice. That is outside of my realm.” So whether to your point of having the conversation with the CPA beforehand. Have them available during the mediation to say, “Hey, here we’re thinking about doing this or doing that.” Because it’s the same with a house. If you’re going to take a house and then sell the house you’re going to be hit with some taxes on that.

I mean, there’s all these different hidden tax liabilities or even benefits. I’ve seen people try to pick the stocks in a brokerage account that they want, because those stocks have lost a bunch of money and they give the ones that have gained a bunch of money to the other side. On paper it looks like the two stocks are worth the same amount. But realistically the second they’re sold one party is going to get hit with the gains and the other part is going to get hit with the losses. They’re not hit with losses, but at least can claim the losses. So things like that are important to talk about.

Jessica Davis: There are also some kid issues. I think that factors into that too. We talk about this, but depending on your summer schedule, for example. Summer camp is a huge expense. If you’re going to do a schedule where most people do these bigger blocks of time in the summer. But if you’re doing a schedule where y’all are going back and forth during the week at all, sharing the cost of summer camp might make sense. I think this is a great one all the time, but I have young children, you got young kids. We can talk about this, but the cost of daycare is so expensive.

A lot of times child support we’re looking at that number and saying, “how are we going to make this work?” I feel like one of the great creative solutions that we have is not necessarily raising that child support number, but agreeing to carry some of those expenses while the children are young. Sharing daycare costs until they start kindergarten, or sharing the cost of extracurricular activities. We have some kids who are incredibly talented who are involved in a lot of extracurricular activities that are really expensive. Working out those agreements ahead of time can help if those kinds of things are really important to your kids. Just to make sure it fits with the obsession schedule and everyone can afford it and participate in it.

Ryan Segall: I’ve seen it countless times with travel teams and things like that. That stuff can get extremely expensive.

Jessica Davis: Yeah, and that kind of cuts through the first right to refusal. We see that a lot where people want a first right refusal, meaning if the other parent can’t take the kid during their time they offer it back to the parent who’s not going to have possession. We got to think it through too. My kids stay with their grandparents a lot, because we live close. You want to make sure you carve out those exceptions that are important to you and important to your kids. Those are all things to think about. Just being sure you’re kind of considering your lifestyle going into mediation and those ancillary too.

Ryan Segall: I think the right of first refusal is such a terrible idea.

Jessica Davis: I totally understand why people do it. I think maybe if someone traveled. I think about it like this, maybe if someone traveled a lot for work that would make sense. If you’re going to have random Tuesdays and Wednesdays during the school year or something like that. Overall I think it’s really cumbersome. As your kids get older they’re going to want to go to sleep overs.

Ryan Segall: But then the enforceability of it is virtually impossible.

Jessica Davis: Yes. Then what if the parents say they can take that? This happens all the time. They say they can take them and then it gets to be the week that they’re supposed to have them and they’re like, “Oh wait, no. I can’t do that.”

Ryan Segall: It just causes more problems, and something that can be mediated. I think that’s a good stopping point here.

Jessica Davis: Well, thank you so much for having me.

Ryan Segall: Well, thank you for joining me and it was a good time. You crushed it.

Jessica Davis: Oh, thank you. I feel like I could talk about mediation for probably three hours. There’s so many things to say about it.

Ryan Segall: Maybe if people smash that like button on our podcast we’ll get a part two of this. I don’t know. We’ll see. And we’ll reveal more tips, insider tips there.

Jessica Davis: Yes. If you get through the first 20 minutes of our podcast we promise to give you our good tips.

Ryan Segall: That’s the thing. Maybe we need to change it up so that they just don’t fast forward to the 20 minute mark. So that’s the key there.

Jessica Davis: Okay. Maybe we will mix it up next time. 

Ryan Segall: Everyone out there, you don’t know where the tips are going to be. So you’re going to have to listen to the whole episode.

Jessica Davis: Got to listen to the whole thing.

Ryan Segall: All right. That’s all we’ve got today. Thanks Jessica, for joining us.

Jessica Davis: Thank you.

Ryan Segall: If you have any follow up questions on mediation or interested in consulting with myself, Jessica, or any of the attorneys here at Walters Gilbreath feel free to contact us directly. You’ll find the link to our website as well as our contact information. I’m Ryan Segall. And thanks for joining everybody.

For information about the topics covered in today’s episode and more you can visit our website at waltersgilbreath.com. Thanks for tuning into today’s episode of For Better, Worse, or Divorce where we post new episodes every first and third Wednesday. Do you have a topic you want discussed or a question for our hosts? Email us at podcast@waltersgilbreath.com. Thanks for listening. Until next time.