Mediation: What is it and how can it benefit my Texas Divorce?
When it comes to a
divorce, most people have the idea that filing a case with a court means that
you will be going to court to have a judge decide the issues in your case
and lay down the law as he or she sees it. This can be true, most certainly.
If you and your spouse are going through a divorce or are considering
filing a divorce and you cannot agree to
settle on all issues in the case then a judge will play tie breaker. However,
there are alternative ways to resolve a divorce. One such method is called
Divorce Mediation in Texas Examined
If you’ve never heard of mediation before or are unfamiliar with
the concept we can fix that problem right now. Mediation in the context
of Texas divorce cases is a process in which both parties (and if they’re
represented, their attorneys as well) meet with a third party (usually
an attorney) to help the parties to the divorce facilitate a settlement
on as many of the issues of their case as possible. Mediation is not required
in a divorce case in Texas. If the parties are able to resolve all the
issues of their case without the need for mediation or the
court to intervene then more power to them. However, that is not the case in
most situations and mediation can help bridge the gap between the two sides.
Communication is almost always a problem for divorcing spouses. Whether
it is about the kids, the household finances or both, when spouses can
no longer communicate with one another a divorce will usually be not too
far behind. Hiring their own attorneys is a step in the right direction
towards better communication but even then the attorneys are acting as
messengers of sorts for their clients and truly fruitful discussion isn’t
always possible. A mediator has no “skin in the game” in that
they have no interest in who ends up with what piece of property or which
parent gets to choose where the kids live.
Temporary Orders Mediation
A mediator’s job depends on what point in the divorce he or she is
coming in to assist with a settlement. If the parties have chosen (or
have been ordered by their court) to mediate prior to a
temporary orders hearing then the mediator’s main focus is getting an agreement in
place in regard to temporary
conservatorship/visitation/possession/access of the children first and foremost. Basically, the parties need to be
able to get adjusted to living separately and seeing their children based
on a schedule rather than at each other’s discretion.
Once the issue of the children is dealt with, the other focus of temporary
orders mediation is determining who will be paying for what during the
divorce. All of the household bills, the
mortgage, school tuition, etc. need to be put in either the responsibility of husband
or wife. Other issues such as
child support and/or
spousal support will also be negotiated upon. An important part of the mediator’s
job is to help each party assess the strengths and weaknesses of each
of their positions on the aforementioned issues. From personal experience
I can say that some prior clients have believed themselves to be in an
iron clad position of strength in a certain area despite my disagreeing
with them. A benefit of attending mediation is that you as a client can
get the opinion of another family law attorney who knows the law and knows
the judge before whom we will be going for the temporary orders hearing.
Temporary orders mediation sets the tone for the rest of a divorce case.
If you and your spouse are able to settle your case in mediation that
is a good sign that the case is unlikely to see the inside of a courtroom.
The agreement parties reach in mediation is usually much more personalized
than anything a judge could determine. What’s more, it allows each
side to get a different perspective into their case. Usually it ends up
showing each party that they and their spouse are not as far apart on
the issues as previously believed and that attending a contested temporary
orders hearing is unlikely to result in either side being completely satisfied.
Final Orders Mediation
Once your case is settled in a temporary orders mediation, you and your
spouse will have an opportunity (usually around two months or so) to get
adjusted to living under a court’s order. After this period you
and your soon to be ex-spouse will reconvene for final orders mediation.
If both sides felt satisfied with the first mediator it is likely that
you will return to that mediator’s office to see if you can finalize
Final Orders Mediation takes into account the same issues as discussed
in temporary orders mediation and then adds more “permanent”
issues of the family home (if you are living in a home you own) and motor
vehicles, rental properties, etc. Basically if you have to show ownership
of a piece of property with a title document, you will need to get that
sorted out in final orders mediation. Are you going to remain in the home?
Is your spouse? Will the house be sold? How will the proceeds be split?
Will you have to buy your spouse out of his interest in the home? All
these questions will be debated upon until either a settlement is reached
or a stalemate is declared. If a resolution cannot be reached on any issue
then the parties will head to court on their scheduled trial date and
a judge will play tie breaker.
Final Thoughts on Mediation
Ultimately, the court isn’t in control of your divorce nor is your
attorney. You and your spouse are. The decisions you make (or refuse to
make in some cases) can go a long way to determining how much time, money
and effort has to be put into a divorce. Some divorces will require a
judge to decide the issues. Most cases, however, can and should be settled.
This saves you and your spouse money and time and allows the focus to
shift towards rebuilding lives and bank account balances. What’s
more, an order that is arrived at by mutual agreement is much more likely
to be followed than one created by a judge that barely knows you or your spouse.
Questions on Mediation? Please contact the Law Office of Bryan Fagan
If you find yourself in a situation where you are considering a divorce please
contact the attorneys with the
Law Office of Bryan Fagan. We are strong proponents of mediation and the benefits that are afforded
to our clients in that setting. A consultation with one of our licensed
family law attorneys is free of charge and we are available to meet with
you six days a week.