Welcome And Why Mediation Matters

SPEAKER_01 0:01

Welcome back to the Texas Family Lawyer Podcast. My name is Alex Hunt, managing attorney at Hunt Law Firm. And today, uh, if you're facing divorce in Texas, you're most likely going to end up in mediation. And today I'm very excited to be joined by former judge John Millard. He was the associate judge in the 328th Judicial District Court in Fort Bend County. He's seen it all in the courtroom. And now he has started a mediation practice based in Fort Bend County, but serving the entire greater Houston area. And we're going to get the benefit of his expertise and what he's seen, good lawyering that he's seen, not so great lawyering, what you want to see, what you don't want to see. Judge Millard, thanks so much for joining me. Well, thank you so much for having me. I'm honored to be here today.

From Trial Lawyer To Associate Judge

SPEAKER_01 0:54

So tell me a little bit about you, uh, how you, you know, give give me your origin story. Tell me a bit about your background.

SPEAKER_00 1:02

Well, sure. Um, so I've been a lawyer a long time. Um, sometimes I'm surprised when I count the number of years that I've been doing this. Uh I I've always been a trial lawyer. So I've always been in the courtroom, and I spent uh several decades handling family law cases, and I've literally handled every type of case you can possibly handle. I've had numerous bench trials uh as a lawyer, uh quite a few jury trials as a family law lawyer. And so um after doing that for many years, I got an opportunity by Judge Walter Armadas to serve as his associate judge, which kind of caught me uh off guard and out of the blue when he made the uh offer to me. And um, after thinking about it and talking to my wife about it, I decided that would be a good fit for me, and so I became his associate judge and served in that capacity for four years. And then after leaving the bench, I decided that uh pursuing the mediation and arbitration practice would be a good fit. And so uh that's what I've done. And you know, I've been very pleased with it. I enjoy doing it. It's it's actually uh a um uh the my background and my experience, I think, has given me a good view to to help people settle cases because I've on the one hand I've represented people and I've been an advocate, and so I have that view, and then I had time on the bench and I've seen the view from the bench and what judges see and what's important to them and what annoys them, that kind of thing. And and now I'm acting as a mediator, and I think that that experience has really helped me uh assist people in getting their family law cases resolved.

Finding A Former Judge Mediator

SPEAKER_01 2:52

Well, you and uh Judge Armatis, Walter Armatis, you uh formed uh mediation judges uh uh with Armatis Molard. Tell us a little bit about where folks can find you and and what you all do. Sure.

SPEAKER_00 3:09

Well, the easiest way to find this is uh via our website, mediationjudges.com. And uh once you're there, you can get a little bit of background about Judge Armatis and I, what our history is and what our experience is. And then importantly, you can see our booking calendar if you want to book a mediation session, and you can view it in real time. And with a few simple clicks, if you find a date that works for everyone, you're booked, and you get an immediate confirmation of your session, and then we follow up with uh more detailed information, reminder emails, that kind of thing. Wonderful.

SPEAKER_01 3:44

We've mediated quite a few cases together successfully, and I always appreciate that. And there's a difference between mediating with a former judge who has seen how judges will react to different situations, and you can provide a unique perspective for our clients, especially when you know the current judges so well, and you can say, look, I I see the the fact pattern, I feel for you. This just not gonna fly if you go to uh to court with with this set of facts.

SPEAKER_00 4:13

Yeah, I mean, I think that is uh actually, you know, one of our better value propositions is that we have that experience. And, you know, I tell people this all the time, Alex. Um, I don't have a crystal ball. I can't predict for you everything that's gonna happen in court, but sometimes you get a pretty good idea of which way things are gonna go. And I I um feel that that helps people make decisions about their cases and hopefully uh avoid making a mistake by going to court when they should settle. Absolutely.

What Texas Mediation Really Is

SPEAKER_01 4:47

Well, let's jump right in because uh if you are going through a divorce, especially if you're in Texas, more than likely you're going to find yourself in a mediation. And it comes in many different forms. Sometimes it's in person, sometimes it's on Zoom. But for a new litigant that's just starting their divorce journey, talk a little bit about what mediation is.

SPEAKER_00 5:09

Yes. Well, at its core, uh mediation is a voluntary, confidential settlement process where parties get together with someone who's trained to help them resolve disputes, someone who's neutral. And uh it's an opportunity for you to sit down and explore whether you can reach agreements that help you avoid going to court. And in Texas, I think it's it's very important that people understand that while we say mediation is a voluntary process, and it is in the sense that no one can make you settle or make you do anything you don't want to do, um it's very much an involuntary process in terms of whether the court requires you to participate in it. Right. And uh I think people are sometimes surprised to find out that uh they they may have to mediate the case twice because most courts, I think this is pretty universal across the state, actually, they require that you attend mediation uh before you get a temporary orders hearing. And then even if you have attended mediation, if you have a trial that's necessary after that, they make you do it again. And there's really a there's a good reason for that. And the the main reason is that we uh are very often successful in settling cases, and judges know that. They know that if the parties will take the time to sit down with someone who can help them settle the case, there's a good chance they can reach an agreement, and then the court doesn't have to handle that case. And courts are very busy, they've got plenty to do, and if they can get cases resolved by agreement, that's that's a good thing for everybody. Trevor Burrus, Jr.

SPEAKER_01 6:52

Even when the parties think there's absolutely no way that this case is ever gonna settle. I mean, how many times have you gone into a mediation room in the first 10 minutes and one of the parties is like, good luck, we'll be out of here in 15 minutes because this isn't gonna happen.

SPEAKER_00 7:07

That happens a lot, actually. And um I I kind of chuckle a little bit when I hear that because sometimes uh and and lawyers, you know, trial lawyers in particular, they can they can be um you know a little brash sometimes and they they are saber rattling. And so they'll come in and say things like, let's just declare an impasse. Let's we want to check the box and just get this done. I say, okay, well, hold on a minute. Let's let's talk a little bit about it and see what we can do. And I've actually had a lot of success in settling those types of cases. And if you take the time to sit down and focus and see if there's some middle ground that can be reached, very often you can walk away with an agreement.

Turning Conflict Into Forward Motion

SPEAKER_01 7:50

How do you approach those cases that are the impossible? He's never going to settle, she's come to this in bad faith. What's your approach to providing solutions for those folks?

SPEAKER_00 8:01

Well, you know, it it's always important that the parties understand that sometimes what you think about your case is not the reality of what will likely happen when you go to court. And very often you you have people, especially in divorce cases, where there are a lot of hurt feelings and there's a lot of history that's led up to them going through a divorce, and they have a lot of unresolved grievances that they feel that they need to address. And so you really have to kind of move beyond that and move into look, we can't do anything about your marriage. We can't fix your marriage. That's not what we're about. We're here to talk about moving forward and what we can do to get you through this and move on with your life.

SPEAKER_01 8:48

Clients that I've had especially, you know, they do have those grievances and they're legitimate grievances, and they feel like I need to have my day in court. Right. And mediation can sometimes provide that platform for somebody to it's not court. You are not, you know, wearing your judge hat in mediation, but they can have their day in court and have a neutral third party listen to their grievances and sympathize and empathize. Right. Um, and and oftentimes, especially if the facts are not necessarily on our side, I would much rather have my clients have their quote unquote day in court in mediation versus in a week-long trial where they're going to run up all types of bills and they're going to have all their dirty laundry out there for the public to watch.

SPEAKER_00 9:35

Yeah.

SPEAKER_01 9:36

Um out-of-the-box solutions. Um, you know, uh, how do you how do you come up with interesting solutions for folks when there's difficult situations that arise?

SPEAKER_00 9:48

Well, I think what you said is actually very true and very important. People do need a chance to have their day in court. And so I always try to make sure that they're heard on that and I give them an opportunity to talk about that. And then I pivot into, okay, well, uh, you know, I understand that. Let's talk a little bit about what your goals are to get you out of this. What can we do to get you through this and get agreements in place that make sense for you, make sense for your financial future, uh, that are in the best interest of your children. I try to pivot away from all of the uh the hurt and hard feelings and look forward into what we can do to come up with solutions to get you past all of that.

What A Zoom Mediation Looks Like

SPEAKER_01 10:37

So for a new litigant, they're new to mediation. Um one impression that I've gotten from my clients, and and they usually say, when they think that mediation is them sitting across the table from their spouse or their ex-spouse, uh, and then when I can break the news to them that no, no, you're not even gonna see them, they're gonna be in another room or another breakout room if you're on Zoom. Can you walk viewers through the process of like you know, turning on the Zoom camera or coming into your office? What does it look like? Walk them through what a mediation looks like.

SPEAKER_00 11:16

Yes, and I that's a that's actually a very important point because there are certain other types of cases where the format and the custom is very different than family law. So, as an example, if you have a contract case, it's very common to get everybody together and each side makes an opening statement and then there's some dialogue back and forth, usually facilitated by the mediator. Then you break into separate rooms and start negotiating. We have found in family law that that is generally very counterproductive. And so um we we don't go there. It's it's very rare that you do that. And I think uh most of the time the parties are actually relieved that they don't have to stare each other down. And um, one other thing I'd say that we we have a rule that we don't allow non-parties to attend the mediation. And um, there are some exceptions to that, of course, if somebody has someone they need there, you know, they have a some incapacity or something and they need a parent there or something like that. But we generally don't think it's productive to have um girlfriends and boyfriends show up. They it it almost always is a disaster. But um we get everybody there, and most of the mediations that we do these days are via Zoom, and I think that uh everybody has adapted to that and feel very comfortable doing in Zoom, and it has a lot of benefits over meeting in person. You don't have um travel, you don't have traffic and all of the things that you had to do to go in person. So we put people into separate rooms called breakout rooms, and then customarily I start with the petitioner who filed the case and get information about their goals and what they would like to see happen, and then I go into the room of the respondent and have a similar discussion and learn their side of the case and what their goals are, and then ultimately I present the proposal that I got from the petitioner, and we go over that and we talk about that and come up with uh things that we can agree to and things that we can't agree to, and then generally get a counter offer that I take over and present to the other side. And that process goes back and forth until ultimately, hopefully, you reach an agreement. Um, one of the real benefits of Zoom is the ability to screen share during the mediation. I I find that to be very helpful because we can do things like share a spreadsheet where we have an uh inventory of the property and the debts and the values and how those assets and debts will be allocated between the parties. It's very helpful to have that as a visual and in real time go through it and kind of, you know, um move things around and see what ifs. And then at the end of the case, when you get the case resolved and you're moving on to the actual uh mediated settlement agreement, I find it very helpful to screen share and go over it and make sure that everybody's in agreement with it before we circulate it for electronic signature.

SPEAKER_01 14:25

Definitely.

SPEAKER_00 14:25

Because if you don't do that, what happens is you circulate it and then you get uh somebody saying, Hey, wait a minute, we forgot this or we didn't agree to that.

SPEAKER_01 14:34

And one side will say, Well, I'm ready to go, let's sign it, and the other side will say, Not so fast. That's right. Um, and when when I was trained as a mediator many years ago, and I certainly don't do as many mediations as mediator as you do, I'm more often in the advocate chair, but I had somebody explain it to me as shuttle diplomacy in family law mediations, kind of like Henry Kissinger, and you're going back and forth. And often what a lot of my clients are surprised at is you might be, especially early on in the mediation, in one room for an hour or an hour and a half. And that just means that you're doing what you need to do in order to get somebody in a place where they would be able to reach a settlement. And then as the mediation goes on, you're shuttling back and forth more often. Sometimes it's even a few minutes. Okay, this, you know, when you're in the last few points, you said that you needed this, let me go in the other room. And then two minutes later, you're coming back and kind of finishing it up.

SPEAKER_00 15:32

Absolutely. And I I actually uh warn people at the beginning I'm gonna go talk to the petitioner now. Please be patient with me. This process takes time. So it may be gone quite a while. And I prepare them for that. And then I usually suggest to them that, you know, make good use of the downtime. While I'm over there talking, be working with your lawyer and going through some of these things and making sure that you're on the same page. And then when I come back, we'll have a chance to talk. I'll give you equal time.

SPEAKER_01 16:01

Yeah, no, most certainly.

The Biggest Mediation Mistakes

SPEAKER_01 16:03

So, as a mediator, what are some of the biggest mistakes that you've seen litigants and lawyers make in mediation?

SPEAKER_00 16:11

Boy, there are a lot of them, uh, unfortunately. And um the biggest one is coming to mediation unprepared. And um that uh unfortunately happens a lot. And um, you know, I I get that lawyers are very busy as a profession. Uh you always have more to do than you you seem to have time for, but it is so critical to come prepared. And um that involves having discussions with your client before the mediation date and sitting down with them and going over um what the game plan is and what their expectations are, and perhaps um setting realistic boundaries on their expectations and alerting them to things in advance that um are not good to bring up for the first time at mediation. You know, if there's and and you know when your client has some baggage or some issues that are gonna definitely impact the case, you need to have that discussion with your client well in advance of mediation so they're not they don't feel blindsided by it if when you're in mediation. So not being prepared is a very big one. And as part of your expectation setting with the client, I think it's important that they understand that you you can sometimes confuse what they think ought to be fair with what actually realistically can happen in court. And there are common misconceptions in family law, and you see them. Uh people say things like, well, I paid for everything, you know, and so I ought to get everything, and they don't understand the concept of community property and so forth. So I think it's important for the lawyers to have those kinds of discussions before they get there. And then another thing, and this uh kind of drives me nuts, Alex, is um very often the lawyers will come in and the first thing they say is, well, we need this bank statement, we need uh this record, we that we don't have this, we don't have that. And so the first, you know, hour or two of your session is essentially doing discovery that should have been done well in advance of the mediation. You should have already exchanged all the information. Um sometimes there's little pieces that you don't have, and that's understandable, but I've seen cases where literally there was almost no exchange, and now they come into mediation, and so they want me to facilitate discovery. Right.

SPEAKER_01 18:50

And that's a very poor use of the time because you've got your lawyer, your spouse is their lawyer that they're paying, and you're paying the mediator. Yeah. And um, oftentimes, especially we'll get to the end of a mediation and we'll be fighting about the pots and the pans. And I'll say, You're you're spending a thousand dollars an hour to fight over the pots and the pans. Oh, absolutely. Go get another pot or pan, you know? And so being able to keep your client big picture like that is really important. Um, I completely agree with you that preparation is so

Guardrails, Memos, And Real Prep

SPEAKER_01 19:25

important. I I kind of separate that into two different levels of preparation. So, what you mentioned was doing all of the pre-work in terms of uh written discovery and and whatnot to allow your attorney and you to have the tools to know these are all the assets, these are all the debts, these are the uh, you know, the problem spots in our case, these are the problem spots on their case, but you need to know all of that before you can appropriately evaluate the case. Right. And the the second level of preparation is actually preparing the mediator and your client for the actual mediation. And so that's where we do, and hopefully you find this helpful as a mediator. You know, we do a summary of relief requested where we go over with our client what they're seeking to get out of this process. It kind of serves as our first offer, and um, we lay that out in great detail, and then we'll provide it to you, usually in a Word document. So that way, as we're going through the mediation, you can kind of use that as your template. The other side will say, Well, no, not $100,000 out of the retirement, but $80,000, and you can go in and plug that in. But you're using our template for what potentially the ultimate uh settlement is going to be. And then having those conversations with your client ahead of time, because when you get into mediation, even though you're not facing down the other party, you know, face to face, it can get very emotional. Even clients that will think, uh I'm fine. I've we've been doing this for a while. It can get very emotional. And so I always have conversations with my client, not just about what our first offer is, but pre uh conversations about what are the guardrails for what you would be willing to accept. And if we go beyond that guardrail, I'm gonna tell you, we're past what you said you would accept. This was your we're going to court line.

SPEAKER_00 21:28

Right.

SPEAKER_01 21:29

Because if you're in mediation and you're you're very emotional and you're in your feelings and you surpass that line, um, you might regret that later on that you that you did that. So it's better to have those guardrails in place before you get to that place. And then you you're you and your lawyer are on the same page and you can kind of hold each other accountable.

SPEAKER_00 21:51

Yes. And and you mentioned something I think is is very, very important. Um, and you know, I've had a lot of experience mediating. With your firm, and your firm does it right. They always send material in advance. I uh uh will get a confidential mediation memorandum, uh, a requested relief memo. And um uh Alex, I'm actually shocked sometimes that uh I show up for a case and I get absolutely nothing from one of the lawyers. And I've never understood that. I've never understood that because you're putting yourself at a huge disadvantage. When you give the mediator your uh confidential uh memorandum and your requested relief, you're giving the mediator a roadmap of where you want to end up. And um, I read everything. If the lawyers send it to me, I read it all. And very often, I almost always I'll go look at the court's file before we begin the session because I want as much information about the case as I can get. Sure. Because that helps me. That helps me uh understand the case better and help the parties reach agreements. But I think in terms of mistakes, that is a huge one that that lawyers make. They don't go to the task of mapping out what they want. And I think they they hurt themselves. Not only do they not give me a roadmap, they don't give themselves a roadmap. They come in and they they have you know not a clear picture of where they want to end up. And I just I've I've never really understood that.

SPEAKER_01 23:23

And the mediation process by its very nature is going to be pretty fast-paced. Um, you know, you're in a four to sometimes eight hour. Um, as you know, we uh my firm recently had a case where it was probably about a 12, 14 hour mediation. And you were you're uh we were locking up the office at around 10 30, but we got it done. I appreciate that. Yeah. Um and you do your client a disservice as the attorney if you are doing discovery on the fly and you're learning about the case on the fly and you're teaching the mediator about it in the room because um, you know, all of that work can be done ahead of time. And then those minutes that are reserved for negotiation can't be used for that purpose. Right. So, what

Creative Solutions And Partial Settlements

SPEAKER_01 24:10

are some other things that you've seen litigants or lawyers uh do that they've gotten really great outcomes for their clients, um, and it's really kind of set them apart. What did they do to be successful?

SPEAKER_00 24:24

Well, um it's pretty simple, really. The best outcomes occur when the lawyer is prepared, when they've had conversations with their clients about what is realistic and what is unrealistic in advance. And um, they show up uh knowing what the estate consists of, they know all the assets, they know all the debts, they know things about the children, their needs, they know about their schedules, they know about um what schools they the parents would like them to attend. They they know information about those schools, you know, where they rank in the school rankings and and things like that. And they've had those discussions with their clients before mediation, and so they've learned a lot about their clients' needs and the children's needs, um, and they show up prepared. And and that makes a very big difference in the outcome. And um, you know, having a realistic idea of what could happen if you had to go to court is very helpful as well. And so I think to the extent that you have that discussion with your client in advance, it goes a long way into getting the case settled successfully. And you can uh to a very large degree, when you know you have issues, you can in advance start exploring creative solutions to that issue. And I think the the really good lawyers in mediation don't just paint by the numbers and you know, this is let me conservatorship check, possession and access check.

SPEAKER_01 26:07

Right.

SPEAKER_00 26:08

They go through and they give some real thought into alternative solutions that may fit everybody's needs and work and be a kind of a win-win situation. Those are the really good lawyers, in my opinion.

SPEAKER_01 26:21

And some folks that have watched this channel might think, you know, this is a family lawyer podcast. Why do we find ourselves talking about mediation probably just as much as we do hearings and trials? And for us, and I don't know what it's like in your experience, or if you just have any more information kind of globally, probably about 80% of our cases resolve themselves in mediation. And so, yes, we're doing all that prep work because we might ultimately go to trial, and it's better to be prepared and ready to go, and we always are, but at least in our case, it's usually about four out of five, maybe even more of these cases resolve in mediation. And so you don't just go to mediation and see what you can get done. There's real strategy that goes into it. What does it look like in your mediation practice?

SPEAKER_00 27:10

Well, um, I I I agree with you. I think that a uh fairly high percentage of cases do resolve. And um, you know, we don't um I don't settle all of them. Some of them don't settle, but you can't. You know, well, you can't. Sometimes there are issues that can't be resolved. But um again, back to the preparation, I think that the lawyers that show up prepared usually end up with a better chance of settling the case. And then one thing I'd say about um, you know, if you if you have a mediation and you just can't get to the finish line, you can't settle everything. I always explore the possibility of uh partial settlements. And uh, you know, your average divorce with children case is essentially two cases in one. You've got the property and the debt and the division of that, and then you've got the children issues. And they are separate and distinct, and uh it is possible to settle literally one half of your case and at least accomplish that at mediation. Now, lawyers sometimes have strategic things that perhaps they don't it's an all or nothing type proposition. Right. I've found that that's actually pretty rare, and that most of the time you can settle a partial uh settlement of your case, and that's very efficient because if you do have to go to court, instead of the entire case, you now have half the case or maybe even one or two issues that remain to be resolved. So it's very efficient. Courts appreciate that a lot, I can tell you, because they don't have to hear everything. And um so it it is um it's good because it enables you to get a lot done and then focus your efforts on the issues that are really important to you that can't be resolved. And I think most of the time when you do that, you get a better result.

When Mediation Fails, What Next

SPEAKER_01 29:04

So, as you mentioned, not every family law mediation is going to result in a settlement. A lot of them do. Most of them do, but not all of them. So let's say that you've gone to family law mediation before a final trial, you're unsuccessful. What comes next?

SPEAKER_00 29:20

Um well uh you get prepared for trial. Uh if you've been unsuccessful and you've now fulfilled your obligation to the court to participate in the process, um you start to prepare for trial. And um I will I will say this, Alex. Um I always tell people when we're unsuccessful in settling a case, I make a point to tell them this process was not a waste of time. It was beneficial because at a minimum we've clarified what the disputes are, and you probably have learned something about the other side's case that perhaps you didn't know. Or maybe you learned something about your case that you need to address and fix.

SPEAKER_01 30:04

Yeah.

SPEAKER_00 30:05

And so it's never a waste of time. It's always beneficial to help you get ready to go down and have your day in court.

SPEAKER_01 30:12

And you can typically, as a trial lawyer, figure out what the issues that the other side are going to make a big deal about in court and so you can start to prepare yourself for those.

SPEAKER_00 30:22

It's very valuable for that. And so it's never a waste of time.

unknown 30:25

Trevor Burrus, Jr.

SPEAKER_01 30:26

So, as a former judge and now as a mediator, what would your advice to folks who do step away from the negotiating table? What would your advice to them be?

SPEAKER_00 30:37

Well, I would um I would say, first of all, don't just give up on the idea that the case can still be resolved. Because sometimes you can step away from mediation, you have an impasse, and that means you can't you have no agreement. Don't just throw in the towel and say, okay, we're done, we're going to court. You can continue to explore whether things might be resolved, perhaps uh revisit things that and look for solutions to issues that you thought were insurmountable, and you may well be able to still resolve the case. Um so I would tell them that, and then I would tell uh the clients that um when you're going to trial, it it's a good time to have a discussion with your lawyer about um realistically what my position is and what we want. And um, you know, is it realistic that I'm gonna get that if we go to court versus what has been offered?

SPEAKER_01 31:42

Aaron Powell You can kind of refine what the issues are. There might be some things that, you know, and I've had clients that have done that that, you know, they well, I'm willing to give this up. This is not a hill that I'm gonna die on, but yeah, I really need this. So if we're gonna go to court, let's make this the primary focus.

SPEAKER_00 31:57

Aaron Powell Yeah, absolutely. And and I think it's a it's always good to have a discussion with your lawyer about okay, look, if we if this is the offer, this is what they proposed. If we go to court, what's the upside on this issue? What's the downside? How much is this gonna cost if we go to court? And importantly, how long is this gonna take? And you know, sometimes those uh answers to your questions will guide you on where you need to go and maybe cause you to rethink your positions on things.

SPEAKER_01 32:30

And you have a unique perspective on this as a as a trial lawyer and then as a family court judge who's seen numerous trials and hearings, and now as a mediator, and you know, you're mediating every day. What are the costs, maybe not even just the financial costs, but the overall costs of failing at mediation and having to go to court for clients?

SPEAKER_00 32:52

Well, the obvious costs are the attorney's fees. I mean, that's obvious. You know you're gonna incur fees, and and I tell people all the time that um there's one thing I know about good lawyers, and good lawyers, they are gonna devote the time that they need to be successful in court. And it's not that they're, you know, trying to take advantage of you. They're they want to do a good job. They want to win, and so they're gonna put in the time. So there's there is definitely the financial cost, but there are a lot of other costs that I think people tend to overlook. I think that uh they overlook the the stress on themselves, the um emotional fatigue that you can have dragging these things out, the impact on the children. And perhaps one of the biggest things I think is overlooked is um the uncertainty of going forward in court. You really don't know what the judge is going to do. And while we all feel that we have a pretty good idea of how things may happen, the truth is we really don't know. It's up to the judge. They have broad discretion in making these decisions. And sometimes they they throw you a curve and you you lose control when you don't resolve your case. You're putting it in the hands of the judge, and even though you think you have a good idea about what the judge may do, sometimes they do something that's completely different and catches you off guard, and it's that loss of control, I think, that is a very important factor to consider.

SPEAKER_01 34:21

Well, I'll tell my clients, and you know, there are certainly cases where the only resolution is that you need to go to court, and that option is always there, and that's good because we have a system where if you are in need of uh, you know, having the law enforced, you can go to court and you can request that relief. And especially in the counties that I practice in, we've got great judges who will uh hear your case and listen to it fairly and rule fairly. But a judge, especially if you've got something like a temporary orders hearing, in some of the courts in in Harris County, especially, they'll tell you each side gets 45 minutes to present your case. So that's you putting on your testimony as the client, the opposing party, any witnesses. Um, that's an hour and a half total. The judge is seeing a small, small slice of your life and is making huge decisions. And you know that often temporary orders kind of sets the stage for what's going to happen during the dependency of the case and then really kind of sets the table for what might happen at final trial. Right. But they're seeing this small portion. And so uh, you know, it just goes to the point that that uncertainty, you're not really able to always present a full picture. That's our job, is to try to paint the story, but you're not always necessarily able to do that.

SPEAKER_00 35:43

You know, that's a really good point. And um, I I think people are very surprised to find out that that's the case. And and you know how it is on your typical uh hearing day, you show up and you look around the courtroom and it's packed. There are people everywhere, and they're all there for the same thing, and that is the judge's limited time. And so they do. They put you on the clock. They have to, otherwise, their dockets would never move. And, you know, it's not that the judge doesn't want to hear everything. They, of course, they want to hear everything. They would love the luxury of hearing all the details so they can make a very good decision about the case, especially when it involves children. But the reality is they don't have that luxury. And so um, you you certainly have to factor that in. I think justice usually gets done, even with that restriction on time and so forth. But I think people are um a little surprised when they they find out that they're on the clock like that.

Why Signed Deals Are Final

SPEAKER_01 36:43

And one of the unique things about mediation in Texas is that if you reach an agreement in mediation that the family court judge is really not given any discretion to overrule that mediated settlement agreement. I'm curious, when you were on the bench, were there ever situations where a mediated settlement agreement came to you, and maybe as the judge you'd you read the pleadings or you'd seen a hearing about this, and you looked at the mediated settlement agreement and said, Well, this is not the way that I probably would have ruled, but uh, you know, this is your agreement.

SPEAKER_00 37:17

Yes, yeah. And um, you know, you you especially when it comes to children in cases, you see agreements that have been reached, and there is a temptation or a hesitation on your part to approve the agreement when you're looking at it and you just think this is not a good agreement for these kids. But we have uh very clear mandates from the Texas Supreme Court about that, and they've made it very clear that that is an agreement that uh the court uh shall accept, and the parties are entitled to judgment on that. And uh I think most of the time, though, it it's it's usually not a concern for the court. It's when you have good lawyers in the case, they typically work out things that are normal and fair. So you don't see a lot of extreme cases in that regard. But uh, but yeah, and I think you know that we we drive that point home when we first get the parties in. I have a little mediator speech. You've heard it before. Um the lawyers get sick of hearing it, but um, I do it every time because I want to be consistent and I want to always be able to say I did it. And uh that's one of the things I tell the clients is that uh that once everybody signs this thing, it's immediately binding and irrevocable. And that means you can't wake up tomorrow morning and say, Hey, you know, I slept on this and I'm not happy with the deal I made. That's it's it's a done deal.

SPEAKER_01 38:48

Yeah, that just goes back to the point of you need to do that preparation so somebody isn't coming to terms with the idea sitting in this very emotional mediation room and and just signing on the dotted line and thinking about it later. What as a former judge and now as a mediator, what criteria would you recommend to folks about whether they should walk away? Because certainly as a mediator, you know, you don't want folks to walk away from the mediation table, but certainly there are cases where you have one side that's maybe uh being unreasonable. If you were in that client's shoes, what criteria would you tell them this is the moment that I think that it makes sense for you to walk away?

SPEAKER_00 39:33

Well, um there are cases that need to be tried. There there certainly are, and that's why we have courts. It's because sometimes people can't reach agreements. And I think that um if you're making the decision to say, well, we're not gonna settle, we're gonna go to court, it should be based on a very uh firm conviction that the result you're gonna get if you go to court is significantly better than the result you're gonna get by agreement. And you have to be prepared to uh take it to court when you have that kind of situation. So if the agreement that's offered to you is just gonna be contrary to everything you stand for and everything that you think the judge will likely do after you've had that discussion with your lawyer, and you know, keeping in mind that nobody can completely predict these things, we do get a fairly good idea sometimes. And so if you're being offered uh something that's way less than you will likely get in court, that is is something that you probably should stand firm on and go ahead and take to court. Um, or if it's a case where um you just don't have all the information that you need, and that happens, you know, maybe there's information that could significantly impact your decision, and you should perhaps pause when you have that occur and wait until you get the information before you make a final decision on accepting an agreement. You'd rather pause and perhaps not reach an agreement than make a bad deal only to find out a day or two later that you really made a bad deal.

SPEAKER_01 41:21

And you you make a really important point, and it's you know, would you be able to get a better deal if you were to go to court? And I think that's where good lawyering comes in because clients can sometimes come to mediation and think, well, is this I don't think that this is a good deal or a fair deal in my eyes, or in this kind of idealistic view of what justice should be. And, you know, they've been wronged and and they're they are in their feelings, or you know, justice is not necessarily through your eyes. It's not, is this fair in God's eyes? It's looking at the Texas family code. What is this judge going to be allowed to do in your particular situation? And that's the lens that you have to look at this. And it's a flawed system, but it's the best system that we have. And um were there ever any situations where you were sitting on the bench where you had a party and you thought, man, I I wish that I could do more, but my hands are kind of bound by the family code.

SPEAKER_00 42:27

Oh, absolutely. I mean, you know, as a judge, you um, of course, you want to be completely fair and and try to um give everybody their due and make a good decision based on the evidence, but you also have to follow the law. And um, you know, you don't get to make up the law. And even when you perceive something that could in your your overall feeling be an injustice, if it's within the bounds of the law, you have to follow the law. And so those things they do come up. You know, we don't make the laws, we just we just uh make sure that they're followed.

Where To Learn More And Wrap

SPEAKER_01 43:04

Right. Well, is there anything else that you think that we missed or that you might want lawyers or parties to know about mediation or about your practice?

SPEAKER_00 43:12

Uh no, I think we've covered it quite a bit. I I um I think that uh I I will say this. I I strongly believe in mediation. I think it is a wonderful tool for people to uh try to resolve cases. And very often when you uh go about it the right way, you prepare, you go in with realistic expectations, the end result is very often an acceptable agreement. And um I tell people uh a lot at the beginning of a session that it is a rare thing for someone to say, hey, I got everything I wanted out of this deal. That almost never happens. And it's not really about that. It's more about can I live with this? And is this something that's better than rolling the dice and going to court? Certainly.

SPEAKER_01 44:05

Yeah. Well, Judge John Millard, I appreciate you joining me. Um, you know, I think great lawyers make great judges, great judges make great mediators, and you're uh yourself and Judge Walter Armatis are testament to that. We always enjoy mediating with you. Uh, you're always fair, you do an excellent job. You've resolved a lot of cases that I didn't think could get resolved for us. And so um, if anybody out there is uh looking for a mediator, whether you're an attorney or uh a litigant, you can go to mediationjudges.com. That's where you can find Judge John Millard and Judge Walter Armatis. Again, my name is Alex Hunt with Hunt Law Firm. You can find my firm at family lawyerkatie.com. Uh, we serve clients throughout the greater Houston area uh in all types of family law cases. Thanks for watching. We'll see you next time.