The Family Court System Is Broken. Here's What I Think Actually Works.

Texas family law attorney Michael Hiller shares 36 years of hard-won insight on why mediation and collaborative divorce fall short, and what a better system for families with children might look like.

The Wild West of Texas Family Courts:

I have been practicing family law in Texas for 36 years. I have sat in courtrooms across this state. And I will tell you plainly: the Texas family court system is the Wild West.

Every courthouse is its own small kingdom. Every judge runs their docket differently. The rules that apply in Travis County may bear little resemblance to what happens in a rural county two hours away. And the families caught in the middle, especially families with children, pay the price.

I stopped waiting for the system to fix itself a long time ago.

The Two Great Reform Experiments

Over the past few decades, the legal world has tried two big ideas to make family court less destructive.

Mediation

Mediation was the first. The idea was simple and good: bring both parties together with a neutral third party, help them reach their own agreement, and avoid the courtroom entirely.

It achieved partial success. In Florida, a 2025 study tracking over 1,000 cases found mediation success rates between 70 and 80 percent. That is real. That matters.

But in Texas, mediation got swallowed by the litigation machine. It became a checkbox — a required step before trial, not a genuine alternative to it. Lawyers still drive the process. Costs stay high. Families still end up in court.

Compare that to Canada or Scandinavia. There, mediators work directly with the parties across multiple two-hour sessions. Lawyers advise between sessions. Lawyers draft the final documents, and in some jurisdictions, someone other than the attorney-mediator does the drafting to preserve neutrality. The mediator is not a tool of the litigation system. The mediator is the process. That distinction matters enormously.

Collaborative Divorce

The second experiment was collaborative divorce. The idea: both parties hire specially trained collaborative attorneys, sign an agreement to stay out of court, and work through a team of professionals to reach a settlement.

Honest assessment? It has been a near-total failure in virtually every state.

Even collaborative lawyers often do not fully understand why. Here is what I think is happening: they underestimate how many clients come through the door with undiagnosed personality disorders, untreated mental health challenges, and trauma histories that have gotten significantly worse since the pandemic. The collaborative model assumes a level of emotional regulation and good faith that many clients simply do not have. When that breaks down, the whole process collapses — and the parties start over in litigation, poorer and more exhausted than before. Collaborative divorce works beautifully in a narrow slice of cases involving sophisticated, emotionally stable clients with shared values. It does not scale to ordinary Texas families.

The Human Miscalculation

Both reform movements made the same fundamental error. They misread American culture.

We reward winners and punish losers. We are raised to look out for number one. The "figure it out yourselves" model sounds good in theory. But here is the truth: if these two people had the tools to resolve their differences, they probably would have stayed married.

Pro se filings are rising. In Travis County, filing fees run around USD 290. People see that number and think they can handle it themselves. Some can. Most cannot. And when one party hires a lawyer and the other does not, the unrepresented party almost always gets crushed. Autonomy without capacity is not freedom. It is abandonment.

What Actually Works

Americans need a decision-maker. Not a cold judge in a chaotic courtroom with 40 cases on the docket that morning. Someone more impartial. More focused. Someone who sees the family as a unit that is restructuring — not a dispute to be adjudicated.

Child custody laws in Texas give courts broad discretion to determine the best interest of the child. That standard is right. But a packed family court docket is the wrong place to apply it.

The Proposal: Private Arbitration Without Lawyers

Texas Family Code Section 153.0071 already allows binding arbitration for parent-child matters by written agreement. The legal framework exists. We do not need new legislation. We need people willing to use what is already there.

Here is what I am proposing: private arbitration with just the arbitrator and the parties. No lawyers in the room.

The arbitrator's job, in order:

First — explore whether the marriage can actually be saved. I am a trained marriage coach. I know that sounds radical in a divorce context. But 42.1 percent of children in Texas are born to unmarried parents. The cost of family breakdown is enormous. It deserves at least one honest conversation.

Second — if the marriage is ending, refer the parties to genuinely good parenting programs before decisions get made. The Washington State parenting program stands out as one of the best models in the country. Parents who understand what their children need make better agreements.

Third — decide the issues. And here is what I have learned: there are usually far fewer real issues than people think. Most of what drives conflict in family court is fear, not facts. A skilled arbitrator can move through the actual decisions in a few focused sessions.

This is not a revolution. It is a private parallel system that grows alongside the public one and, over time, takes much of the weight off it.

Who Can Do This Work

You do not need to be a therapist. But you need what I would call an inner therapist.

The best family lawyers I have known eventually burn out. Many leave litigation and become mediators. Some leave the law entirely. Those are the people worth recruiting and training for this model. They already have the legal knowledge. They already have the empathy. They just need a different structure to work within.

My two most important mentors are Robert Benjamin and Bill Eddy. Both have that rare dual quality: rigorous legal minds paired with genuine psychological insight. That combination is not common. But it is not impossible to find — or to develop.

Why I Believe I Can Help Build This

A father who was a business lawyer. A mother who was a therapist. Forty years of Transcendental Meditation. A genuine spiritual grounding that respects all faiths and imposes none. The patience to sit with someone in pain and actually listen.

Governor Abbott recently appointed me to the Texas Commission on Marriage and Family. I take that responsibility seriously.

But I am not waiting for policy. I have already done this work in a handful of cases. I know it works. I know I can do it a thousand times. And I know I can train others to do it too.

If you are a family going through this right now — or a lawyer or professional who feels the same frustration — I would genuinely like to hear from you. Reach me at hillerlaw.com.

This is just the beginning.

FAQs

Q: Does Texas law allow private arbitration for child custody disputes? Yes. Texas Family Code Section 153.0071 permits binding arbitration for parent-child matters when both parties agree in writing.

Q: How does a Texas court determine the best interest of the child? Texas courts look at each parent's ability to meet the child's needs, the child's relationship with each parent, stability of the home, and in some cases the child's own preferences.

Q: Why does collaborative divorce often fail for ordinary families? It works best when both parties are emotionally stable and financially sophisticated. Many families carry unresolved trauma or mental health challenges that cause the process to break down.

Q: What is the standard possession order in Texas? Generally, the non-primary parent gets the 1st, 3rd, and 5th weekends, Thursday evenings during the school year, and alternating holidays.

Q: Can I file for divorce in Texas without a lawyer? Yes — but it is genuinely difficult, and if the other party hires an attorney, the unrepresented party is at a serious disadvantage.

Q: What makes private arbitration different from going to court? You choose your decision-maker, set your own schedule, work in a confidential setting, and avoid a packed court docket.

Q: What is the Washington State parenting program? One of the most respected evidence-based parenting education programs for divorcing families — focused on reducing conflict and building cooperative co-parenting skills.