Most people would prefer a quick and efficient divorce. And for good reason. Divorce is costly in both money and time. Think not only of the cost of the experts and the attorney fees but also of the time required and the impact that prolonged divorce litigation will have on other members of the family.
The good news is that most cases do settle before they get to trial. They say about 90% of cases will settle. And the other 10% who don’t will go to trial before a judge.
My guest here today is Judge Tena Callahan. She recently retired from the 302nd District Court in Dallas County and has been working with families to find resolution through the mediation process for the past four years. Today, we will discuss what people need to know about divorce with mediation, and how to get the most out of the process.
- What is mediation, and what are its benefits for the family?
- Why should the spouses make the decisions in mediation instead of a judge?
- What does the structure of mediation look like?
- How is the judge’s role different from a mediator’s?
- How can people prepare for mediation?
- Why do people get stuck in divorce processes, and how do you help them get unstuck?
- Are there times when people shouldn’t go to mediation?
- What message of hope would you like to leave with someone facing a divorce and considering mediation?
What Is Divorce Mediation, And What Are Its Benefits For The Family?
Divorce mediation is something that family courts have been doing for a long time. I think people much smarter than me and a lot older figured out that it is much better if parties come to agreements about their disputes in the family divorce arena.
They must start practicing being parents with kids and not spouses with kids. Hence, long ago, statutes were put in place where people could resolve their family disputes without going to trial. We call it alternative dispute resolution. Technically, a divorce is a legal dispute, and so mediation is an alternative way to resolve all the issues in your family case without ever having to hear a judge decide it.
Why Should The Spouses Make The Decisions In Mediation Instead Of A Judge?
Well, because if I were to be in those shoes, I would not want somebody who has known me for six hours and has only heard six hours’ worth of evidence to make decisions about the most personal things that we’ve got —our really prized and coveted kids, money, and our most personal possessions.
While a judge will decide after hearing evidence, there’s no way that I ever heard enough to make what I considered an educated decision. I would make the best decision based on the evidence I heard, but I never felt like I gave it justice.
In Texas, divorce trials have a limited amount of time, ranging from half a day to two days. The rules of evidence also limit them; not all witnesses you know and present will testify.
To litigants, divorces are obviously emotional. It is their lives; the most intimate aspect is ending, and something else will happen. The uncertainty leads to much fear and emotion when spouses go to trial. But the judge is not emotionally attached to anything they’re going to be talking about. The judge will not care if you have a long list of witnesses who will come in to say, “What a bad dude he is,” or “Do you know what she is?”. The judge will consider the evidence’s relevance if they allow anything like that in at all.
What Does The Structure Of Mediation Look Like?
Attorneys request to come to mediation, present the issues, and a day is reserved. During COVID, we often did mediations by Zoom. More often now, people are doing them in person.
For example, we have a husband and a wife with two kids, and the husband files for divorce. So, in divorce with mediation, the husband and his attorney and the wife and her attorney would appear at either the mediator’s office or one of the attorney’s offices or a neutral spot where there are offices. The husband and his attorney will go into one room, and the wife and her attorney will go into the other room. And I, as the mediator, will go back and forth to negotiate a settlement between the two. That’s logistically how it works out.
I think it’s good for people to know that they’re not going to be in the same room with their soon-to-be ex-spouse for 8-10 hours during the day. They are going to be in separate rooms.
Correct. Some attorneys, depending on what the issues are, might want to put everybody in the room at the same time. I have never done that because it’s so emotionally charged.
For civil or probate mediation, you can get everybody in the same room in those cases where contracts are involved. But usually, for family issues, you’re going to be in separate rooms. Oftentimes they don’t even want to see each other coming and going. Timing is everything when it comes to that.
But once everybody gets there, I will usually start with the person that got the ball rolling —in my little hypothetical, it’s the husband. I’ll go in there, and I’ll start with him. What I’m looking for is a proposal, some sort of idea of what it is that he wants to try to get this thing settled. Usually, he will state everything he wants. I’ll take that into the other room, and the wife hears what the husband wants. Then the wife will state if she is okay with his demands, and she could change a part of what he said to suit her. We’ll go back and forth like that.
My job is to get everybody from what they want as individuals to an agreement, from non-agreement and different wants to what they can live with. And as adults, we can live with a lot. If both mom and dad, in my hypothetical, are negotiating to go from what they want to what they can both live with, then they’re making decisions that the court would make. They’re making decisions that are in the best interest of their children, and how best to divide their property. If they can both live with their decisions, then that is what the judge calls a just and right division. And those are the judges’ marching orders.
So the husband/dad and wife/mom are doing what the court would do. That is why it is an alternative way to resolve your dispute. And once spouses get from different wants to agreed wants, I will draft a mediated settlement agreement, another statutory enigma that everybody has to look at and understand the ramifications. When everybody signs off on it, it’s done. You will have to get a final order done by your attorneys, but you will not go to trial. All the issues have been resolved, and you can turn a corner and move forward.
How Do the Judge and Mediator Roles Differ?
My days of making the decisions as a judge are over, which is not a bad thing. But in a divorce with mediation, the mediator is there to facilitate an agreement between the parties. Now that doesn’t mean I don’t use any judge skills that I’ve got and probably some that I think of on the fly to try to convince people to do this instead of that or maybe give a little here and a little there. But at the end of the day, this is about the parties, the people, their kids, and their property. They’re the ones that are going to make the decisions.
If an agreement is reached, it isn’t because your lawyer or I said you’re going to do it or not. It’s because you decide that there’s value in resolution.
As a mediator, you can really get to know the people, explore different options, and brainstorm ideas. In those sessions, you hear what is really important to them, and then you can help them find other options, things that you wouldn’t be able to do if you were a judge.
When I was a judge, I wished people could see what I was thinking; wishing they wouldn’t opt for some terrible ideas. But as the mediator, you do have the opportunity to help people think outside the box. One of the things that I’ve had the privilege of taking advantage of from all those years that I spent on the bench is seeing how other people would do things, how they would resolve things, and how situations came up that I resolved.
And so I have a lot of experience with these sorts of issues. This may be the first divorce of the mediating parties. They’ve never done anything like this before. They have emotional blinders on, and they just need someone to help them take it off. Often, I may make a suggestion, and a spouse takes it and runs with it. The other spouse takes the same suggestion, and an agreement is reached. Therefore, because of what I’ve done before, my history, and what I’ve done on the bench, I have the ability to help people view different options and then run with them. And that’s empowering because the parties need to understand that it’s their lawsuit, mediation, and agreement.
That’s exactly right. As a divorce attorney, even if a client asks me, “What do you think I should do? Of course, I’m there to advise, but at the end of the day, it’s their decision. I want them to own that decision because they’ll have to live with its consequences.
That’s right. And Jennifer, they don’t necessarily have to be okay with every decision in order to live with them. There are things that I don’t like or that don’t make me happy, but I can live with them. If both people are headed in that direction, they’re going to make agreements that truly are best for everybody and their entire family concerned.
Because the other option is instead of being the one making your decisions, you’re going to allow somebody else’s decision to be imposed on you.
You’re going to have a perfect stranger tell you when you’re going to see your kids, who decides the school they go to, who gets to take them to the doctor, and who’s going to get Grandma’s hutch.
How Can People Prepare For Mediation?
First thing, contact your attorney. You’re going to know about mediation way ahead of time. Mine was scheduled one month, two months, three months ahead of time. So you’re going to know it’s coming up.
Attorneys are busy, but they know all about mediation because they’ve done so many. Maybe for you this is your first divorce and you have no experience with mediation at all. So even in a half-hour conversation, your attorney can explain what the process will be like, talk about proposals, initial offers, and those sort of things so that you have some idea of what you’re going to be walking into on that mediation day.
Regarding things to have ready, if there are properties to divide, then it’s always a really good idea to have a list of your property, and to know the extent of your property. Maybe your attorney’s got that list, and that’s great, but you need to review it and ensure you haven’t left anything out. You also need to stay updated with the financial accounts. It’s always a good idea to have access to documents that show what you got today or as close to today as possible.
You should always do that, and that’s very helpful. It would help your attorney, and it’s also going to help you. It gives you something to do and keeps you busy as you’re headed towards the mediation. And then, it also saves time during the mediation. The mediation will be much more beneficial and actually more cost-effective if you have those documents at your fingertips.
People are often surprised at how long mediation takes. Some people think that a full day is unnecessary if they have already agreed on all these issues. They would rather do half a day but mediation takes time, and part of that time is because there’s probably some missing information.
Most of my successful mediations start out with some emotionality coming out. Because this is the day that you’re going to talk to someone who isn’t the judge —but if you were in court, it would be the judge— about how you’ve been done wrong or how bad things have been, or what has gone on or why you’ve ended up sitting in the chair opposite a mediator on that day.
Oftentimes, I want folks to decompress and get that out because once a little bit of that emotionality is let out, people get calmer, and they’re not as nervous. Then they can think more clearly and help me come up with creative ideas to help them.
It does. I am not a neuroscientist, but it’s like they move from the fight or flight part of their brain that harbors the fear they feel coming into mediation, into the creative problem-solving part of their brain. It is a good thing.
Anecdotally, that’s how I see that process play out. Interestingly enough, once we can get the emotionality out, we start working on solutions. And before you know it, I’ve got folks that have gone from different wants to reaching an agreement. Sometimes it takes six hours, or it could be 10 hours. Interestingly, people that go longer than your full-day, eight-hour typical mediation want to because they see the momentum, and they can see they’re getting near the finish line, and they start feeling good about the resolution. They understand that there is value in that resolution.
I see the switch happen when they begin to see life after divorce and it’s a good life. Because now, you actually have numbers and a schedule, and some of those pieces are filled in. As the day progresses and you get closer to the finish line, you actually begin to see that you will be okay. It’s a beautiful thing.
Yes, it is. There is a fear of the unknown and, let’s face it, life after a divorce is an unknown. Now, some people have already moved on years ago. But there are others that have not, and they will stay stuck in where they are because they can’t move forward. They’re so afraid.
If you can spend a little time talking about that and letting them express it, then talking with them about alternatives and just opening things up for them, even if it’s just a little bit, then they can see that light, and then they can help themselves better. So, I agree with you wholeheartedly.
Obviously, people do get stuck, and not all cases settle, although most do, so the odds are good that your case will be settled.
Why Do People Get Stuck In Divorce Processes, And How Do You Help Them Get Unstuck?
A part of it is due to the presence of fear and anger. The ones that are probably never going to settle are ones where the folks are so caught up in their own conflict that they cannot let go. Often there are other issues in the marriage that they bring into the mediation that will affect it. Domestic violence, abuse, substance abuse, mental health, and even physical health issues are overarching in any mediation I do. And so, you have to be sensitive to how those facts will affect the people in the mediation. Sometimes, it might take more than one mediation session.
In high conflict cases, I have found success in doing two or three-day mediations. Often in that respect, the folks have agreed to figure out how the issues will be resolved outside court. Then there are times when some will say, “It’s my way or the highway, and the judge will see it my way, and you will take the highway.” We call that an impasse.
I think people can get really entrenched in their stories and their position, thus making it harder to move. If they’re willing to just let go a little bit and wiggle a little bit, then they can make headway.
Right. Usually, I don’t know until 5, 6, or 7 hours into the mediation that I’m not going to be able to get these folks there because everybody starts out entrenched. They start out apart. If they weren’t entrenched, they would settle it with their lawyers. It’s just, “How entrenched are they?”
I, as the mediator, would ask for a little confidential statement from the lawyers to give me a little bit of history or a little bit of what’s going on with the parties. If there’s anything that perhaps I need to know about from the attorneys and that I cannot let the other side know, or if there’s something about their client that they want me to know. It’s really important that your viewers know that mediation is a confidential process. I can go in one room and hear all kinds of stuff, and unless you say it’s okay for me to tell anybody in there, I can’t tell.
So there are things that I’ll know that you’ve told me that your spouse doesn’t know, that I wish they knew, but I can not tell them. Now, does that mean I can’t read a room? I can read a room, and I can tell this person over here, “You know, I will never be able to sell that in that room. You’re going to have to come off that. I just know it. I’m just telling you. Right now, I’m not selling that in that room.”
That’s because I know what’s going on in the other room, without telling them what’s going on. So you can feel comfortable in talking to the mediator about anything you wish. I think that’s one of the things about mediation that allows people who are entrenched to loosen up.
Exactly. They want to be heard and to have the experience validated at some level. It’s a beautiful thing because holding on to those positions is a hard place to be.
I think one of the reasons attorneys like to go to mediation is that the mediation may start saying things to the client that the attorney has been saying for six months. But the client just quit listening.
Well, when you’re in that attorney-client relationship, a lot is shared and discussed, but many of the same things are rehashed. And so it can be really helpful just to have another set of eyes and ears.
Are There Times When People Shouldn’t Go To Mediation?
My biggest concern about not going to mediation is whenever the power dynamic is so skewed. Most of the time, for purposes of family cases, that’s whenever there’s a domestic violence issue. We can go to mediation, but you don’t have to if there’s been domestic violence. The law says you do not have to, and the court can’t make you.
But especially now when there’s Zoom, and you don’t even have to get in the same building with the person, you don’t even have to see them, and they can’t see you, mediation could be helpful because the only person that’s dealing with the alleged abuser or abuser is me, not you or your attorney. And I can see if I can facilitate something to get an agreement going. I have done that. I have mediated domestic violence once.
I feel the same way because one of the things that we know for sure is that in litigation, the stakes can get a lot higher. So people who have a propensity for violence can get more violent. It’s not like going to court is a safer place to be; you can explore it. Obviously, if somebody is so unreasonable and you just can’t negotiate with them, then it’s not going to be fruitful, but it’s worth the try.
In Dallas county, when I was sitting on the bench and also I see it a lot now, judges would say, “Take that issue to mediation.” It may be the pivotal issue. For example, relocation is a big deal. And if they can’t seem to agree on it, a judge will ask for mediation. I did the same thing.
That’s why I do four-hour mediations. Either it is a limited issue, or the judge told you, and you’re checking off a box. You never know, oftentimes we can make chicken salad out of this thing, and we can come to an agreement on something else. But for that issue, no. They’re going to have to take that down to the judge. You just got to tell some of them to somebody sitting four feet higher than you in a black dress. They got to tell you how it’s going to be. Sometimes, that’s life.
It is. And that’s why we have judges, and it’s an important part of our legal system. So not everything is going to settle, but certainly worth the shot.
I think so. Even where you think it would never happen or that you are never going to settle, most times, there will be a settlement.
What Message Of Hope Would You Like To Leave For Anyone Facing A Divorce And Considering Mediation?
Divorce is change, and that’s all it is. If there’s anything we can count on, it’s going to be change. It doesn’t change who you are. It changes your circumstances but doesn’t change who you are inside. It doesn’t change relationships. It doesn’t have the power to do that unless you let it. And we get so caught up in our emotions, but they’re just feelings. We’re all going to be okay. You just need to take a deep breath.
The lovely thing about what I’ve done and how long I’ve been doing it is that I’ve had former clients come back to tell me how much happier they are. And I’ve had people that I made decisions about on the bench who have come back and said, we never thought it would work, but it did.
And with mediation, people thank me when it’s over with when they’ve gotten a resolution because they’re so relieved that they’re turning a corner and that someone cared enough to help them do that. And that’s what we’re here to do. We care enough, and we’re going to help you do that. You find yourself in not the best of circumstances, but they’re just circumstances, and they’re going to change.
Thank you so much for the great words, the work you’re doing to help our families, and for taking the time to be here today. If you would like to find out more about Judge Tena Callahan and how she might help you through your divirce with mediation, please visit her Call Judge Callahan website.