It is not uncommon for some of the people who consult with me regarding a divorce to ask why do we need to go to mediation? Is mediation required to get a Texas divorce? The answer is no mediation is not mandatory to divorce in Texas.
I have found though in most cases mediation is a very good way to settle divorce cases in manner that allows for certainty of the outcome and a way to control cost. In today’s blog to we will discuss why mediating your Texas Divorce Case is a good idea and 5 ways you can prepare your case for mediation.
In Harris County and Montgomery County mediation has become almost universal accepted as well are required in family law cases. When there are two attorneys on both sides of family law case in these counties there rarely question why we do it. However, for individual who does not practice family and divorce law and who this may be their first experience with a lawsuit the why is not quite so clear.
As I mentioned earlier mediation is not required to settle a divorce case in most cases when the parties are agreed. However, many courts in Harris and Montgomery counties require the parties attempt mediation before asking for a hearing on:
- Temporary Orders or
- Final Trial
This means that if you need a hearing mediations may not only be a requirement in many cases, but a stepping-stone before you can progress to the next step in your divorce. I sometimes get the questions can we ask the court to waive the mediation requirement because I know we will never settle?
Yes, we can ask the court to waive the mediation requirement. However, that involves filing a motion and setting that motion for a hearing. Unless there is a good reason like family violence then there is a good chance the judge will say no. This means in most cases it is probably easier and cheaper just to check the box and go to mediation.
If you think of mediation as a stepping-stone, you may be tempted to prepare for the mediation in a casual manner.
However, a better way to prepare for mediation even if the mediation may be unsuccessful is as if you are getting ready for trial. This is because if you settle in mediation then the case is done and costs are minimized. If you do not settle then you are ready for a court hearing.
Other benefits to mediation than “the judge made us do it” include:
- Cost savings
- Relationship Preservation
- Greater Privacy and confidentiality
- Lawyers to be an advocate
- Successful resolution and Finality
Mediation Allows Creativity
One benefit of mediation it allows for greater creativity and customization then going to court. In court a Judge is limited to what is in the Texas Family Code to deciding the outcome of a case. Parties often want a judge to give them a customized and creative solution to their problems. Unfortunately, because of time and the tools available to a judge in the Texas Family Code this is just not possible.
However, through mediation, the possibilities available to parties are much greater because "tools" are much more exhaustive and are for the most part only limited by their imagination and what they can agree on. Parties can agree to almost anything that is not illegal. Texas case law also says that judges are extremely limited in their ability to refuse to enter a decree based on the agreement of the parties in a mediated settlement agreement.
This means that things would be harder to get a judge to order such as:
- 50/50 time with the children
- No Child support
- Split custody
- Paying certain bills as child support and more
Are possible through mediation where they would be very unlikely if the case when in front of a judge.
Mediation Allows Cost Savings
One of the most frequently cited reason for attending mediation is the that it can save you a lot of money, versus going to trial. This is likely true, and has been my experience in most cases. However, mediation does not necessarily save money in all cases. If as my clients sometimes tell me this case will never settle turns out to be true it may an additional expense.
However, even when that turns out to be the case I do not believe mediation is a waste of money and effort. I would say over 90% of time I learn more about a case from mediation then I did before. This is generally because I only have my client’s perspective about a case and get to learn more about the facts the other side deems important which allows me to greater prepare for their case.
One way to maximize the chances of settling the case in mediation and reduce the cost of divorce is by being careful not to cut corners leading into the mediation. This means preparing for the mediation and having:
- Financials ready
- Inventory and Appraisement done
- Proposed Property Division
- Proposed Visitation order, etc.
Mediation Allows You to Preserve Your Relationship
Another reason that is often given for mediating a case versus going to court, is that it can help save the relationship. The idea behind this is if the case goes into a public courtroom often the parties will be saying hurtful, embarrassing, and possibly untrue bad things about the other party. This behavior can damage or worsen the party’s relationship.
Something the parties should consider is that they will be co-parent their children for nearly two decades after their divorce. If the case goes to trial, you can expect to spend tens of thousands of dollars on the trial.
Generally, afterwards one of the parties will be unhappy and you can expect they will be looking for a chance to take the case back to trial. One philosophy is that by discussing, compromising information, and reaching agreements out of court in mediation can be a much better way the handle disputes.
Mediation has Greater Privacy and Confidentiality
The mediation process received strong privacy protection under Texas law. Generally, one way to look at is that what is discussed in mediation stays at mediation. Mediation takes place outside of court often in a private office and this means you do not have the generally public listening to your case as you would in a courtroom. The parties, lawyers, and mediator are not allowed to discuss what happens in mediation in the courtroom.
This privacy allows parties to have an open discussion and make offers to settle the case without the fear of what they saying being used against them in court. There are very few exceptions to the privacy rule. The main exceptions are regarding:
- Child Abuse or Neglect
- Elder Abuse or Neglect
Mediation Allows Lawyers to be Advocates
A lawyer can advocate for their client at mediation to a degree. It is important to realize the mediator does not make decisions about the case. The mediators job is to settle the case. A settled case can take a lot of different forms.
A lawyer can discuss a client’s options and why an offer is a good deal or the client could do better in trial. Additionally, an attorney can spin certain facts and give a mediator information that the mediator can use as leverage to move the opposing side in the other room.
Mediation Allows Successful Resolution and Finality
Statistically Family law and Divorce parties who go to mediation resolve their differences in mediation more often than they do not. Depending on the source you will hear that 80% to 95% of family law cases settle in mediation. The successful resolution of divorce and family law cases is one of the main reasons judge’s order parties to attend mediation before coming to trial.
Another good reason is that if the case settles it is done you and your spouse do not get to change your mind about the agreement the next day. You are both stuck with the agreement unless you can both agree to change something. This also relates back to cost savings that were discuss above. If the case is over, then you do not need to keep spending money fighting.
Unfortunately, not everyone prepares as thoroughly for mediation as perhaps they should to take advantage of all the benefits of mediation. 5 things the Texas divorce lawyers at the Law office of Bryan Fagan like to do to prepare their cases and clients for mediation are as follows:
5 Things to Do to Prepare for Mediation
Preparing your case for mediation is as important as preparing your case for for trial. As part of your preparations it is important to
- Exchange Inventories and Appraisements, and supporting documents (and do discovery when necessary);
- Exchange settlement offers and reach agreements;
- Prepare a spreadsheet of assets and liabilities if property is at issue;
- Send the mediator a confidential position statement and a copy of pleadings, sworn Inventories, supporting documents, a property spreadsheet, a summary history of
- the case, and the client’s goals; and
- Talk to the mediator
Exchange Inventories and Appraisements, and supporting documents (and do discovery when necessary).
Before coming to mediation, I like to insist that parties should exchange their sworn Inventory and Appraisements. It is not uncommon for me to sometimes encounter some initial resistance from my client on preparing an inventory. One of the excuses I hear is that “we do not share any property it’s all in my name or it’s all in her name.”
I then must explain how community property works that it doesn’t matter whose name is on any property. I explain the easiest and cheapest way to settle the case is if we know what property and debts exist. If we do not have the information prior to mediation, we can settle the case on temporary but we will not be able to settle the case on final basis.
it is good idea for the parties to not only exchange:
- their sworn inventories,
- but also, supporting documents
At the very least this should include:
- the latest statement on all asset and liability accounts and
- any supporting documentation for the parties claimed value on real property and other assets of s value.
If the opposing party will not agree to exchange inventories or if you still have financial questions after exchanging inventories. Then it may be necessary to conduct discovery to help fill in some of the financial gaps.
Exchange Settlement Offers and Reach Agreements
It may seem strange to talk about exchanging settlement offers and reaching agreements before coming to mediation. If offers are exchanged prior to mediation
- if there is a good relationship still between a husband and wife and they may be able to reach an initial settlement agreement. This can turn a 4-hour mediation into 1 hour mediation where the initial agreement is just polished and finalized.
- The issues can be narrowed for the actual mediation allowing the parties, the mediator, and their attorneys to focus on the issues that are really disputed or that are most important to the parties.
- The mediator will have a head start by being able to review those offers prior to mediation.
- A mediator will know which issues have potential for an early agreement and those that will need more negotiation.
It is not uncommon in mediation for parties to reach what is known as a partial Mediated Settlement Agreement. When this happens the remaining issue or issues are taken in front of a Judge to be resolved. This means instead of having to have a full hearing the parties will have a shortened hearing. This means the hearing in front of the judge should be less expensive because the parties can focus on only the disputed issues.
Exchanging offers prior to mediation serves the same purpose as reaching a partial mediated settlement agreement in mediation. If agreements can be reached on the easy issues, then the mediator can focus on only the disputed issues saving time and money.
This is something you will want to discuss with your attorney because although something might not be important to you it may be very important to the other party. Sometimes mediation is like a game of chess where you may be willing to exchange a piece but you want to get higher value piece for that exchange. An example might be:
- Your spouse wants to move back home and not be bound by a geographical restriction. This is something you would be more than happy to agree to.
- You would like a reduction in your child support.
If you take the geographical restriction of the table because you do not care about it. There may be no incentive for your ex to agree to no geographical restriction.
Prepare a Proposed Property Division or spreadsheet of Assets and Liabilities
A Proposed Property Division or spreadsheet of assets and liabilities is:
- a helpful tool for parties, lawyers, and the mediator to use while mediation is ongoing.
- It can also speed the preparation of the mediated settlement agreement
Generally, my office will take a laptop and printer to mediation so that as negotiations progress we can update printout updated versions of this document throughout the mediation, often the final version is then attached to the mediated settlement agreement as an exhibit.
We will often email this spreadsheet to the opposing side before or during mediation so that we are using the same spreadsheet at mediation.
This helps make a complicated property case easier. It can get very convoluted if the parties and their attorneys are using different spreadsheets where everything is arranged different or does not include all the same property.
Prepare a Mediation Letter for the Mediator
We like to communicate with the mediator prior to mediation. One way is by putting together a mediation package that we forward to the mediator. Usually include in this package is:
- A letter from us regarding what has happened so far in the case what some of the important issues may be.
- A letter from our client providing some background information on the parties, what they think should be important for the mediator to know, and what they want.
- copy of pleadings
- Sworn Inventories
- Supporting documents
- A property spreadsheet
Most mediators we deal with if we get this information far enough in advance swill review materials prior to the mediation. By taking the time to send the mediator this information allows:
- the mediator to get a head start on what the issues are in the case
- the mediator to study the case and develop an understanding of the parties, their children, and the property.
Talk to the Mediator Prior to Mediation
It is sometimes helpful to talk with the mediator prior to the actual mediation. Sometimes this takes the form of:
- A phone call a day or two in advance of the mediator or
- Just meeting with the mediator at mediation before the mediation starts
The phone call is often helpful in cases where there are already some agreements it can help iron out a lot of the details prior to the parties arriving so that there is already a draft mediated settlement agreement ready.
It is quite common for the attorneys and mediator to meet prior to the start of mediation. Many mediators use this as an opportunity to ascertain what specific issues or concerns need to be addressed by mediator to begin with.
Attorneys can also use this meeting as opportunity to alert the mediator:
- to things that are important to their client. Sometimes this meeting is with both attorneys at the same time or individually with the attorneys separately.
- Clarify the case to the mediator when the case has unusual facts, multiples parties, or an unusual client.
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Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.