From the time that I began practicing family law most clients and potential
clients that I have had the opportunity to work with have had the belief
that a judge will decide their divorce case. It could be that they’ve
heard stories from friends and family who have had long, drawn out divorces
where a judge actually did have to intercede when the parties themselves
could not agree to settle their issues outside of court. The other thing
that I’ve often thought was that television and movies have for
so long made the “courtroom drama” of a heated trial the centerpiece
of so many plots. This is understandable. There is nothing all that exciting
or tension filled about negotiating towards a settlement.
I’ll tell you one thing that negotiations are though: smart. Negotiating
with your soon to be ex spouse about the issues that are important to
your case is about the smartest decision either of you can make. Now,
I fully understand that you are probably upset with the opposing party
in your divorce. They are “costing” you money, time and stress.
You may believe that he or she is putting your children through a tough
time that could have been avoided. The fact that you are having to sit
in the room with a lawyer and discuss splitting your life in two and losing
time with your children may make your blood boil. However, negotiations
more often that not lead to settlements which can avoid going to trial
and having a judge (who doesn’t know your family at all) make decisions
for you that will affect your lives for years to come.
An explanation of what mediation means for you and your family
It’s very easy to think that your spouse is the most stubborn, insufferable
person on the planet when you are going through a divorce. I completely
understand that. However, it may shock you to learn that the vast majority
(I would estimate it at 90-95% of divorce cases) do not proceed to a trial
and instead settle in mediation. Mediation is formalized negotiation session
in which you and your attorney and your spouse and their attorney meet
with either a court appointed mediator/attorney or one mutually agreed
to by you and your spouse. The purpose of this meeting is to have the
mediator work with you and your spouse to negotiate and settle your divorce
rather than proceed to a contested hearing with the judge.
Mediation is often court mandated prior to not only a final trial but also
a temporary orders hearing. The mediator often times is a licensed attorney
him or herself that practices family law on their own time but also works
as a mediator to help others settle their divorce cases. Mediation is
effective in helping to bring you and your spouse together on the important
issues of your case.
So much of settlement negotiations is coming up with creative problem solving
techniques and solutions that will assist your family in moving on to
the next phase in your life. If there are complications regarding visitation
or conservatorship rights that have not quite been fine tuned yet, a mediator
can intercede and bring their own experiences to the table to assist with
coming up with a solution. Likewise, if there is a complicated issue in
terms of your community estate- maybe a business needs to be divided up-
then the issues inherent in that sort of scenario can also be worked on
with little to no acrimony.
The fact of the matter is that you and your spouse are not going to be
face to face in this setting. Rather, you will be in separate rooms with
your attorney. Your mediator will act as a “ping pong ball”
bouncing back and forth between both rooms to communicate offers and counter-offers.
This is especially helpful if you know going in that the level of animosity
between you and your spouse is high. That doesn’t mean that you
both can’t get past those emotions to settle your case. It just
means that if you were having to negotiate in the same room a cross look
across the table from your spouse to you could send the negotiation session
into turmoil and ruin any chance of a settlement.
Additional benefits of mediation: A flexible time schedule and direct control
over what is decided
Mediation schedules are typically four hours in length, though more complex
cases can necessitate full day mediations. You and your spouse will pay
a fee towards the mediator’s services but the fee will pale in comparison
to the costs of having to prepare for and attend a contested hearing or
trial. This flexibility in time allows you to take your time in arriving
at solutions. Often times mediators will allow you and your spouse to
return at a reduced rate to wrap up negotiations and may even waive their
fee if you are very close to settling.
Perhaps the most important aspect of mediation, in terms of an advantage
for your family, is that mediation offers the sort of direct control over
the process and settlement that a trial does not. Ultimately you are working
to determine what the final orders in your case state. These are the ground
rules for the rest of your children’s lives prior to graduating
from high school as well as how your property, debts and other financial
assets will be divided upon divorce. Having a say so in the process is
incredibly important even if you don’t get exactly what you are
asking for. In a trial you may get just what you want but the odds are
greater that neither you nor your spouse will walk out of a trial happy.
A judge intends to do their best but with limited time and resources he
or she will need to make decisions that often times conflict with the
individual needs of your family.
A mediated settlement agreement is final and binding. That means you nor
your spouse can wake up the following morning after settling and tell
your attorney you’re having second thoughts. As long as you understand
this and are comfortable with that concept mediation is a terrific way
to end a divorce that can be described as anything but terrific.
The Law Office of Bryan Fagan: Advocates for southeast Texas families
If you have any questions about
divorce, mediation or
family law in general please do not hesitate to
Law Office of Bryan Fagan. We represent clients across southeast Texas and would be honored to do
the same for you and your family. Please
contact us today to set up a free of charge consultation where your questions can