Leadership In Law Podcast
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Leadership In Law Podcast
S04E151 Mediation for Better Client Outcomes with Felicia Harris Hoss
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A lawsuit can swallow years of your life, millions in reserves, and months of leadership attention, and still end with an outcome no one really likes. That’s why we sat down with Felicia Harris Hoss, a full-time independent commercial mediator and arbitrator and former trial partner, to talk about early dispute resolution and what changes when you stop treating mediation like a last-minute “settlement conference” and start using it as a structured process.
We dig into why so many cases still default to late-stage mediation, even as court backlogs push trial timelines from 18 to 24 months into the 3 to 5 year range. Felicia explains how her courtroom experience shapes her approach as a neutral, blending facilitative and evaluative techniques, asking the questions a mock juror might ask, and helping lawyers practice “quiet confidence” instead of reactive lawyering. We also talk about confidentiality in mediation and how a neutral can reduce the emotional friction and reactive devaluation that keep good ideas from landing.
Then we break down ABA Resolution 500 and why it’s a big moment for alternative dispute resolution, mediation, and arbitration. Felicia walks through the emerging EDR guidelines, including targeted information exchange, focused discovery planning, and decision-tree risk analysis that lets clients evaluate best case, worst case, and likely outcomes sooner. We also explore the business side: reputation, referrals, and creative fee structures that reward smart early resolution.
Reach Felicia here:
https://www.harrishosspllc.com
https://www.linkedin.com/in/felicia-harris-hoss-52712a11/
https://www.facebook.com/HarrisHossPLLC
https://www.youtube.com/@harrishossmediationsarbitr5357
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Show Mission And Guest Credentials
SPEAKER_00Whether your assistant leader are just starting your journey as a law firm owner. The Leadership and Law Podcast is here to equip you with the knowledge and tools you need to build a successful and fulfilling legal practice.
Felicia’s Path From Litigation
SPEAKER_01Welcome to another episode of the Leadership in Law Podcast. I'm your host, Marilyn Jenkins. Today, we're welcoming Felicia Harris Haas to the show today. Felicia is a full-time independent commercial mediator and arbitrator with deep roots and complex litigation. Before transitioning to her current role, Felicia spent years as a trial partner at regional and national law firms in Houston, giving her firsthand insight in how disputes unfold and how they can be resolved more effectively. She's widely recognized in the field, including being named among the best lawyers in America for both mediation and commercial litigation, and a Texas superlawyer in an alternative dispute resolution, a member of the National Academy of Distinguished Neutrals. Felicia has also served on the AAA ICDR National Roster of Mediators and Arbitrators and is part of their specialty panel focused on early dispute resolution. Beyond her practice, she's a leader in shaping the future of dispute resolution, serving in key roles with the American Bar Association, and contributing to the adoption of the ABA Resolution 500, which promotes the use of early dispute resolution tools. Today we're diving into how early structure and disputes can reduce costs, improve outcomes, and give clients back control. I'm excited to have you here, Felicia. Welcome. Thank you for having me. I'm excited to absolutely thank you. Yeah, tell us a bit about your leadership journey.
SPEAKER_02I appreciate that opportunity. I graduated from law school in the late 90s. And as you well know, in the late 90s, mediation was just getting it started in the dispute resolution industry. And after I graduated from law school, I thought I wanted to be an appellate lawyer. Mediation wasn't even on my radar. So I went and clerked for Chief Justice Casey at Fort Worth Court of Appeals. And his sage advice to me was before you become an appellate lawyer, you want to spend some time in the trenches. So I went to a litigation boutique called Beck Red and Seacrest in Houston, Texas, and learned how to be a trial lawyer. And spent the next 20 or so years of my career in front of judges and juries and in arbitrations representing clients and complex commercial disputes. And in that time period, mediation grew as a practice area. And so in 2021, I pivoted my practice out of the courtroom and into the conference room, I like to say. And now I help parties get out of the courthouse instead of through the courthouse. And in terms of my leadership roles and the various bar associations, it's one of those examples of showing some interest in showing up will help you earn the opportunity to help lead and shape thought leadership in your industry. And so that's essentially what I did in the American Bar Association, the State Bar of Texas, and the Houston Bar Association. And I love talking about mediation and arbitration. So I can't wait to share some more of that with you and how the EDR ADA resolution came about and what it's doing in our industry.
SPEAKER_01I love that. Getting involved and going for what you want to, what you really want to work on. So you spent years as a trial partner before moving into full mediation and arbitration. What actually led you to make that pivot from the courtroom to the conference room?
Mediation Style And Quiet Confidence
SPEAKER_02That's a great question. I, as I mentioned, I wasn't really in my early days wanting to be a trial lawyer, but I really love being a trial lawyer. I absolutely love trying cases in front of judges and juries. But the reality is, Marilyn, as you well know, most cases don't go to trial. In fact, there are studies that say some will say less than 1% of cases go to trial. Some will say it's 3%, others say it's 5%. Whatever it is, it's a very small percentage. And it was very common for me to advise clients in the early stages of a dispute when they came into my office that it would take about a year and a half to two years to get your first trial setting. As we know, because the courts are back loved, you didn't always get called on your first trial setting. So it usually lasted a little bit longer than that. But with COVID, that time period switched from one and a half to two years to three to five years. And I was trying at that time to integrate mediation into my trial practice, which is not an easy thing to do. Some do it successfully. I was not having an easy time of it. So I decided in 2021 to pivot completely out of the courtroom and into the conference room where I knew I could help parties get out of the dispute much more efficiently, much more cost-effectively, and probably with a better outcome. What really, though, I'll share this, what really accelerated that thinking happened back in 2018. I had a trial in 2017 in the fall in Federal Court. I represented two energy executives who were being sued for an alleged partnership, which had some tied into fraud claims, etc. One was in his mid-30s, one was in his late 20s, early 30s. A year to the day after the jury verdict, in which we had a favorable outcome, I received this beautiful bouquet of flowers. And my secretary brings it into my office and she says, You won't believe who these are from. Read the card. So I read the card, and the card said something along these lines. Thank you for saving my career a year ago. At that moment, I had forgotten about that case. I had moved on. I, it was another day in the life for me. But at that moment, I realized that for our clients, that experience in the courtroom can really be life-changing. They put everything they have into getting out of the courthouse. And so it really resonated with me that this young entrepreneur, this young executive, took the time. He's up in Pennsylvania, not even in the same state, took the time to send me a bouquet of flowers to show his appreciation. And that's when I realized what we really deliver, what are deliverable is resolution. And how can we do that more efficiently? How can we do that more effectively? And I think sitting in the mediator's chair after 20 some odd years of sitting in the advocate's chair in the courtroom really sets the stage for achieving that resolution with parties.
SPEAKER_01So you you use your experience as a litigator to shape how you approach mediation.
SPEAKER_02I do 100%. I think that a lot of times there's two kinds, which is more than two kinds, but you hear a lot about two kinds of mediation, facilitative or evaluative. Oftentimes you have a little bit of both in the mediation. And so it's helpful to talk from the perspective of the mock juror as a mediator, because I don't know all the ins and outs of the case. But it's also helpful to be able to structure those encyclical questions for the parties and their counsel and to act as a resource for them to see their case perhaps more efficiently, more clearly from the eyes of a jury. So those questions that I asked from the litigators perspective are often questions that the trial lawyer may be thinking about and may have actually talked with their counsel, well, sorry, with their client, but hearing it from somebody else, their client hears it differently. What a lawyer hears it differently, or those little synopses in the brain engage in a way that they hadn't before, and it helps them figure out for themselves where there might be an opportunity for resolution.
SPEAKER_01So it's a bit more structured conversation as well.
SPEAKER_02Sometimes it's talking about how a case will be presented to the jury, how to structure the jury charge. Sometimes it's discussions about pieces of evidence and how they might be perceived, whether they will be admitted or not, and what happens if they are, whether they are not. Or maybe it could be even the effectiveness of a witness or expert or the costs associated with that from the perspective of the one who has to invest in the outcome and what the risks and likelihood of an outcome might look like at the end of the day.
SPEAKER_01So, on the opposite side of that from traditional litigation, what did you want to change to make mitigation a better outcome?
SPEAKER_02Advocacy has many different forms. And what we see on TV oftentimes is the bulldog advocate. But one of the things that I learned early from some of my mentors is this idea that I have a term for called quiet confidence. And in terms of an advocate, it's that ability to know that the world around you for your client, especially, may be going crazy, but you have this calmness about it because you are thinking through all the strategic maneuvers that have to be made, and you can anticipate, see around that corner, if you will, and so you're not going to be surprised by it. I think this the mediation process, especially the earlier you can get into it, you can start seeing how it might play out, and then you're in a better position instead of reacting to respond in a way that advances your own goals for the dispute.
SPEAKER_01I love that, like a completely different direction of the conversation.
SPEAKER_02Exactly. It helps you to, I think when I'm coaching younger lawyers, I often ask them to pretend they're in a stadium and on the field is where the game is being played, where motions are being filed, decisions are being taken. Go sit up in the top row of the bleachers and look down and try to anticipate what is happening on the field so you can best position yourself to get the best outcome. It's one of those things you're hearing you talk about the why question. Why are you doing something? And a lot of times lawsuits, especially between businesses, get filed because of market position. Maybe it's a trade secret issue, maybe it's an employment dispute. But knowing what the why is, knowing what the success is, and then thinking through whether the trial outcome is actually going to position you best for that next phase of your business with the next phase of your career is a way of claiming things out. Sitting, taking that back and being in a mediation where you can gain a better understanding of both sides or all sides' perspectives, compare that against your own with the assistance of a neutral, that allows you to do that strategic analysis before you've invested the time and the money into the process of litigation.
Why Early Mediation Gets Delayed
SPEAKER_01You're doing early mediation. Why do you think that so many disputes still default to late stage mediation instead of earlier intervention?
SPEAKER_02That is the$10,000 question. A lot of it is just routine. That's what we're used to. That's what we're used to. Um, I actually just wrote an article with a colleague of mine that is being will be published in the corporate council review. And we've titled it in final here. It says, stop bringing money for a trial that won't have an early mediation reinvented. So the they did some settings. Cornell did some studies back in 1997 and 2011, 15, roughly 15 years apart. And I'll just briefly say this in 1997, 600 corporate counsel were interviewed, and one out of 10 said that they would routinely try ADR to resolve their corporate disputes. Fast forward to 19, and at that time they said they liked mediation the best out of all the ADR processes. So around the turn of the century, we saw corporations incorporating into contracts this idea of mediation before we go to Port House or good arbitration. We saw that. So in 2011, when Cornell did the same study again, what they saw is mediation and arbitration were throughout the practices of corporate counsel. They wanted it, they were using it robustly. But interestingly, the benefits, the lower cost, the faster time to resolution weren't being achieved. They didn't ask the questions to figure out what the issue was, but they hypothesized in that say that it was because as more lawyers were using mediation, they were just bringing that litigation concept or perspective into it. They were getting very aggressive. They were trying to play nine. We all know that the conversation of mediation is different because the audience is different. The audience is not a stranger in the jury box. The audience is the person on the other side. The decisions that are made in mediation are being made by the parties. They completely control the outcome and they can come up with a better outcome than what any court per jury could ever award. So you need to approach it differently. So I think most litigators feel they need more time to get information, to understand what's going on, before they can meaningfully assess risk and advise their clients on resolution. I think that's what's going on. It's just what's our routine. But I'll share with you early mediation and that process of getting ahead of some of that is gaining momentum and it's getting popular and wire audience in large part because it works. And it actually does allow anybody, whether it's a company or an individual, to achieve the benefits of mediation, which is lower costs, faster resolution, you stay in control, and you can actually preserve relationships.
SPEAKER_01Yeah, having that third party at the table so you can actually see different perspectives in a calm environment.
SPEAKER_02And the benefit of the beauty, I guess, is that there are a lot of statutes in Texas, we have one that says mediation is completely confidential. So what I like to remind parties about is there's a reason for that. And the reason our lawmakers and our judges promote confidentiality is they want the parties to be able to candidly evaluate, seek to understand each other through a process that allows them not to lose, I use the word leverage, not to lose any leverage if they are not able to get a resolution and go to the courthouse. So this is a free pass, if you will, to try to craft your own outcome and I like to say have a soft for landing on your own terms.
SPEAKER_01And you still don't lose the opportunity to take it to court if you need to. Interesting.
SPEAKER_02Exact. Exactly. The reality of it is that early mediation is not one, first of all, and importantly, not every case is good for early mediation. It really requires a little bit of thought behind it. But when you go through the process, even if you are not successful in resolving the entirety of the dispute, you might resolve parts of it, we might resolve none of it. I've yet to have any lawyer or his or her client lead the process and say it wasn't nine. Because a couple of things we can do is evaluate what is missing or what needs to be known, and focus on streamlining a more bespoke discovery process, gather that information, take those depositions, do that investigation, whatever, and then come back to the mediation process and re-evaluate to try to get resolution, or conversely, go into arbitration and have a very bespoke process through that. But the reality of it is that oftentimes in traditional litigation, we don't talk to the other side for the first few months. Judges say one of the things that makes them the most, I guess, frustrated, if you will, is that the lawyers aren't talking with each other. And so what do judges often do when you show up for a discovery dispute? They say go talk out in the hallway and come back and tell me what you've decided. Because for the two months that they have been fighting over this discovery issue, they haven't talked. And so this allows the parties to actually engage in that conversation meaningfully. And you don't have the kind of reactive devaluation that you get oftentimes when I hear an idea from someone that I'm not getting along with, I'm I go, Yeah, that's good for you. But so I'm immediately discounting it. But when a neutral says, what if? and it's the same thing the other side of mine said, you hear it differently. And so it's just that the way the human brain works.
ABA Resolution 500 And Goals
SPEAKER_01Yeah, taking the emotions out of it. So let's jump over to the ABA resolution 500 we talked about. You were part of the team behind that. What is it and why is it such an important development for the legal industry?
SPEAKER_02The American Bar Association Resolution 500, the early dispute resolution resolution, is something that I worked on for a couple of years. Why is it important? It's important because the American Bar Association still holds a place in our country as the largest national voluntary bar organization. And when a resolution is adopted, like this one, and this was adopted unanimously, it becomes the policy of the American Bar Association to promote. It is now a policy of the American Barision to promote and encourage all lawyers and interested parties to increase the informed and voluntary use of early dispute resolution, which basically is party-directed, non-adjudicative approaches to resolve disputes in a time-efficient, cost-effective manner. And of course, really mediation is one of those processes. And so who was behind this? It wasn't just the early dispute resolution committee that I co-chaired. It was supported, this resolution was supported, co-sponsored by the section of state and local government. It was co-sponsored by the senior lawyers division and supported by the ABA's business law section, its section of labor and employment law, its Young Lawyers Division, and its section of government and public sectors lawyers. So it had a broad spectrum of support by those other lawyers and their practice areas to encourage the idea of getting in front of disputes.
SPEAKER_01Impressive. Wow. And what changes do you hope that this resolution will drive in how lawyers and clients approach dispute resolution?
SPEAKER_02We all hope, because there's a lot of us that are supporting us, that lawyers will, in advising their clients, remember one, the public policy of many states is to encourage the early resolution of disputes privately and confidentially, but also our ethical obligations, which are to advise our clients upon about all of their options for resolving disputes. And including in that mix the ability to think through whether the process, not an event, the process of mediation is something that could help their clients achieve a better outcome than what they could achieve through the courthouse. There's really usually there's two key reasons why oftentimes parties and their counsel may elect not to engage our a mediator early. And I'll add a third. Third one is that they think of it like we talked about a minute ago, Marilyn, it's something you do after you've done discovery and you've already sunk the cost into it. But sometimes they say, I don't have enough information. I need more information to advise my clients. The early dispute is called the EDR Institute and the American Barst at the American Arbitration Association are collaborating to launch an EDR mediation panel, which will be using the EEDR Institutes, what have used to been called protocols, are now becoming, are now being called guidelines, which essentially put for the four-step process. And in that process for an early mediation, includes an information exchange, which allows you to essentially say to your client, we may not have all the discovery, but we can probably get the key information we need to help you decide how to resolve this now through the E and the R process. That's the first thing. Second thing is they say, look, I don't want to look weak. I don't want to call a lawyer on the other side and say, hey, let's go mediate this thing. Because the first thing he or she's going to think is I'm afraid of the outcome. So what the protocols do and what this process does, it allows the parties to say to themselves, I'm not looking weak, I'm being smart. Because what is it, Sun Tzu says the most excellence in battle is to cheat by winning without fighting, preserving resources and saving for another day. This is that, right? This is saying to all lawyers in the context, let's just put down our sabers, let's engage in a process which is done primarily remotely, Maryland. So not even taking flights to a city or having to share a meal with each other on a mediation day. A lot of it is done remotely with the mediator and is achieved over a 30 to 45 days, sometimes 60-day period. So it's very different. And so that difference sometimes I think has some lawyers going, I don't want to try it. But let me show let me show something. A lot of lawyers are calling it out and are using it effectively and successfully.
SPEAKER_01It sounds like it's a way of taking your ego out of the whole process as well.
SPEAKER_02I wasn't gonna say that, but maybe a little bit of a I think we were being in Canada. I think too some lawyers are worried about the bottom line: alternative fee agreements, referrals, different kinds of practice process practice areas like settlement council. I think there are ways to and frankly, you like to work on marketing. And I think that this would I'd be remiss not to mention this. Who wouldn't want to get the reputation for being a lawyer who is a great resolve a conflict dispute resolution person, right? Someone who in-house lawyers know when they call this law firm that they know this law firm is they either have the resources in-house or have relationships with those boutiques that do really great travel work. But that law firm can also take it from the very beginning and think about what strategically is best for that business, whether it's a Fortune 500 or a closely held business, whatever, they're gonna think strategically about what it is that is going to advance that business's goals and objectives.
SPEAKER_01Which is the best result. And okay, so you make less money, but you close more cases by doing a better job. And then you get referrals from that.
SPEAKER_02And you may not make less money back in mid-2000s or whatever. I don't want to just quote statistics because I don't remember them all and I don't want to misspeak. But there there was one general counsel, Jeff Carr, FMC, you can look at some of his podcast interviews. He had a system where he basically his team would work with outside counsel, and his statistics showed that they were spending less on outside lawyers, but the outside lawyers, because the way they did their alternative fee agreements, were making more money. There were success fees tied to how they approached the litigation process. And I think creative lawyers, and we all are, can work with their clients to achieve the best outcome for their clients and have their clients buy into the process so that there is a symmetry in the relationship.
The Four-Stage EDR Playbook
SPEAKER_01And I think there's a value in actually getting it done quicker with instead of dragging out, like you said, the three to five years to get into court, get it done in a few months, and then it there's a huge value with that.
SPEAKER_02Yes. And the reality of it is if they're going to set reserves aside, pick a number, right? Let's say they're sending reserves aside at five million dollars, and you resolve or able to help them resolve the case for a fraction of that, then it makes sense to try to incentivize an early resolution or earlier resolution when the outcome is still better for all involved. I agree.
SPEAKER_01How should outside counsel think differently about advising clients when it comes to early dispute resolution is on the table?
Making EDR A Culture Shift
SPEAKER_02Great question. I'll say lawyer. I think just one, having the conversation. Read the guidelines, read the journal articles that are being published and posted, get familiar with what it is. Call me, call some of my colleagues who are doing this and talk through how this process has played out. Just by way of an example, so that you can share the they can give a sense of this. Typically, what happens is I'll get the call and I'll engage in the conversation with the lawyer, set up a Zoom call with the lawyer and his or her client, and talk through the case and do the same thing with the other side, right? So now we are narrowing the focus down. Stage one is understanding what the conflict is about. Once you know the key issues, not 20 different claims and a 50-page petition, but the key issues, what's important. Then we are able to talk about what is what we need to know. We don't have within our scope of documents or witnesses and exchange that. And then we can do a risk analysis, like what is the best outcome, what is the worst outcome, and what is the likely outcome, the probability of each of those. We can this we use decision trees like many businesses do, lots of insurance companies did. We can factor in the cost to each of those particular outcomes and take a decision tree and modify any of those factors. What if this? Then you're able to have a range of possible settlement values. Everyone in the dispute does that, right? Let's just assume it's a two-party dispute. Confidentially, this is not being shared among the parties, but you do it confidentially with the assistance of the mediator, and then you know basically what your range of settlement values are reasonable reasonably, and you can negotiate. Factor in those non-monetary factors, things like risk, fear risk in the marketplace, regulatory relationships, employment relationships, vendor relationships, new product launches that you don't want to be affected by the publicity of a trial, franchise relationship, whatever it may be. Lay that over, adjust your numbers based upon what that might tell you. And now you're in a position to negotiate on the merits versus going to a mediation, which is just what a lot of people call check the box, right? Early in the lifetime. Because the contract says we have to go, we're gonna go, but we know what's next.
SPEAKER_01Interesting. So you're laying it all out, it doesn't take months to get it figured out. So sounds like an amazing process. What are the key elements needed to implement EDR effectively, both structurally and culturally?
SPEAKER_02Structurally, I think it is just making it part of your standard operating practice to have the conversations early and to decide upon the best approach with your client. Culturally, I think it's already getting some momentum. The American Arbitration Association is launching an early dispute resolution mediation panel. We are training with the ENR Institute. I'm assisting in this process, training mediators to know how to work through the four stages of the process, how to work through decision trees and the complexities of various different types of cases. I don't know if it's a process, but an early mediation practice. A lot of lawyers say they are early mediators and will do it. So I think culturally it's getting some traction. And then over time, with a lot of the younger lawyers who are learning mediation in law school now, there are mediation competitions, for example. I think as a lot of the younger lawyers are coming into the practice of law and the courts continue to be backlogged, they will see the value of it. Their clients will see the value of it. And I think over time it will grow. It's just like we talked about a few minutes ago, 1997, one in 10 in-house lawyers try to use ER, and now it's like we want it always. And it's only been 25-30 years since then. So it doesn't take a lot of time, but it does take time.
SPEAKER_01Yeah, I think every contract I've seen for the past probably 10 years has that the mediation clause in it.
SPEAKER_02Yeah. And so one of the things we can do is in instead of just saying mediation before litigation or mediation before arbitration, take a look at the EDR guidelines. They're at the edrinstitute.org on that website. They're still called the protocols that we are revamping them. They will be called the guidelines. Redo them. They're not long, they're only a few pages, and get a sense of how the process works. And then in your contracts, mention we we will go through an EDR mediation process, and that will trigger those four stages, and the parties can then engage in that analysis more robustly with a methodical and restorative for you manage expectations with the expectation of going through the process and finding a lawyer and a mediator who can help you do that most effectively.
SPEAKER_01I love that you just answered my last question is how can someone, a firm or client listing today, take the first step and go to the website, get the guidelines, and get started.
SPEAKER_02Yes, and the American Architution Association, I have an email in the inbox today. They're revamping their website to add this to it. So it's not live yet, but it will be live soon. So you'll be able to get more information there as well.
Resources, Contacts, And Subscribe
SPEAKER_01Fantastic. This has been very interesting. And thank you so much for your time. I know my listeners are probably going to want to reach out to you, learn more. Where's the best place for them to do that?
SPEAKER_02So you can find me very easily on my firm's website. It's www.harrishaas P L L C. That's H-A-R-R-I-S-H-O-S-S-P-L-L-C.com. We're all linked in. I'm there as Felicia Harris Haas. Send me a message.
SPEAKER_01I'd be happy to connect. Fantastic. I'll make sure that all of those links are in the show notes. And Felicia, thank you so much for this today. This has been really good. I've really enjoyed the conversation.
SPEAKER_02Thank you for having me. It's been fun.
SPEAKER_01Thanks for joining me today for this episode. As we wrap up, I'd love for you to do two things. First, subscribe to this podcast so you don't miss an episode. And if you find value here, I'd love it if you would rate it and review it. That really does make a difference in helping other people to discover this podcast. Second, you can connect with me on LinkedIn to keep up with what I'm currently learning and thinking about. And if you're ready to take the next step with a digital strategist to help you grow your law firm, I'd be honored to help you. Just go to Lawmarketingzone.com to book a call with me. Stay tuned for our next episode next week. Until then, as always, thanks for listening to Leadership in Law Podcast, and be sure to subscribe wherever you listen to podcasts so you don't miss the next episode.
SPEAKER_00Thanks for joining us on another episode of the Leadership in Law Podcast. Remember, you're not alone on this journey. There's a whole community of law firm owners out there facing similar challenges and striving for the same test. Head over to our website at lawmarketingstone.com. From there, connect with other listeners, access valuable resources, and date up to date on the latest episode. Don't forget to subscribe and leave us to review on your favorite podcast platform. Until next time.