Of all the processes involved in a Texas divorce, the mediation process is most important. Mediation consists in working with your attorney, your spouse, their attorney, and a mediator who is likely an experienced family law attorney to help settle your case. Judges stand by mediation to such a great extent that most courts in family law will require you at least one mediation session before a trial or temporary orders hearing. I don’t know that there are any official statistics kept on this subject. Still, I would wager that somewhere around 85 to 90% of divorce and child custody cases are settled in mediation before going to a final hearing or a trial.
Mediation is effective at resolving disputed failing law cases for several reasons. First of all, it goes a long way towards taking the air out of your case. Allow me to explain what I mean by that. A divorce is a highly contested, contentious, and often combative environment for two sauces to be engaged in. Not only are you in your spouse not on the best of terms at the moment, but you are also struggling to make it through a court case that can bring up the worst in people. If you and your spouse allow it to be that way with you all, then you can rest assured that the months spent in your family law case will be some of the worst that you have ever experienced.
The day-to-day difficulties within a divorce that two people can get into within the context of a divorce or child custody case are immeasurable. No matter how typical a divorce or child custody case may look at the beginning, I can promise you that there are aspects and decisions made by attorneys in clients within each topic that would leave you shaking your head. I’m wondering why they would do that.
The reason why this is, in my opinion, is that when people are confronted with stressful circumstances, they tend to either not think or overthink and place themselves into roles, but they are not accustomed to being in. Having your entire life under the microscope of a court and attorneys is unfamiliar ground for all of us. Throw in some critical circumstances involving your spouse and children, and we have a potentially explosive situation.
Amid this explosive situation, mediation exists as a means to control the temperament of the case and remove much of the hatred and negative energy between you and your spouse. Mediation involves a dispassionate mediator and an atmosphere that is much more collaborative than it is adversarial. An adverse aerial scenario is a trial. And the trial will be made up of you and your spouse presenting evidence to a judge in arguing your case against your spouse. This is where mudslinging, anything goes tactics, and general hatred for one another can be found full display.
On the other hand, mediation involves a process whereby you and your spouse attempt to work together to resolve the significant issues that have confounded you in marriage and to prepare yourselves and your children for post-divorce life. Rather than putting you in your spouse in the same room for an extended period of time like you would at the courthouse, a mediator will put you and your attorney in one room and your spouse and their attorney in another room at their office. Nobody will have a home-field advantage as it were, but both of you will be able to present your arguments and see what the four of you and the mediator can come up with as far as settlement offers. This is a much better proving ground for you in your spouse and your ability to work together than it would be in a trial.
What happens after a mediation session?
The result of mediation will hopefully be what is known as a mediated settlement agreement. This agreement will be the basis by which you and your spouse draft and eventually sign off on a final divorce decree. In the final decree of divorce, the last orders for your divorce case provide you and your spouse with marching orders for your post-divorce lives. Subjects such as Your children, the finances, child custody, child support, spousal maintenance, and what to do with your marital home will all be decided in mediation, potentially.
The mediator will act as this scribe, writing down all settlement terms and asking you and your attorneys to sign off on them. One of your attorneys will then be responsible for going home with those settlement terms and creating final orders out of them. All sides will be able to go back and forth on the specific language that should be included in the final decree of divorce, leaving a acceptable document to all parties for their signatures.
Once you, your spouse, your attorneys, and the judge have all signed off on a final decree of a divorce case is over with. It will be up to you and your spouse to live based on these orders as you all will no longer be married. However, given how contentious your divorce may be, the mediation process can be a life preserver that is thrown out to you amid a rocky storm at sea. While you may not feel like the divorce turned out exactly how you wanted it to, I can tell you that it is more likely than not that you reach a better outcome in mediation than you will in a trial.
Why are you more likely to reach an equitable agreement in mediation than inequitable results in a trial?
Sometimes, when I talk to a person who is a potential client of our office, they will tell me that they are excited to say to a judge about every terrible deed that their spouse is done during their marriage. That person will then recite a litany of offenses to me and as I shake my head and offer them my thoughts on each. Invariably, those people will be more concerned with holding their spouse to account for these misdeeds than they will about almost any other area of the case. Sure, even if these folks have children and what is best for the kids, they will also want their spouse to be held responsible for doing these negative things to them.
From an attorney standpoint who has dealt with many divorces over time, I can tell you that it is scarce that truth, justice, and the American way are served within the context of a divorce. The legal system is not built to accommodate you for every desire you have to achieve lofty ambitions with your divorce case. On the contrary, the legal system is more or less built to Provide you and your spouse with a certain degree of fairness and protection while administering your case in as timely a fashion as possible. Nowhere in that description does it say that holding your spouse responsible for every slight and lousy action is a part of the process.
Based on what I’ve just told you, you should not feel too optimistic that a divorce trial will result in the outcome you expect or want. Most of the time, I will ask clients after final hearings and trials what they have thought about the process, and while most are satisfied with the result, almost all of them will tell me that they feel like they could have gotten more from the judge or that their spouse got lucky in certain areas. This is not reflective of the client being upset with the judge or their attorney but more or less reflects that a divorce trial does not always turn out how you may expect.
Judges apply the law as outlined in the Texas family code without straying too much one way or another. From this, you can expect that the orders you receive are cookie-cutter based on A1 size fits all prescriptions from the judge. Remember that the judge barely knows you and your smells and will only know slightly more about you after a trial. Expecting them to provide orders that are perfect and thoroughly consider the intricacies of her case is unrealistic.
Instead, suppose you believe that you and your spouse require specialized orders or circumstances to be contained in your final decree of divorce, better off negotiating between yourselves rather than relying upon a judge to create orders reflective of your specific needs. In that case, mediation allows you and your spouse to become creative in coming up with solutions for your post-divorce lives. Not only are you assisted by attorneys who can help you understand settlement offers and propose counteroffers, but you also have an independent and 3rd party attorney in the form of the mediator who can help as well. That mediator likely knows your judge very well and can even offer you a preview of what a judge is likely to say if a settlement cannot be reached that day in mediation.
So, these are the main benefits of mediation as I see them. Our attorneys are huge proponents of the process encourage mediation early in the case to bypass difficult circumstances and help reach settlements earlier rather than later. This allows your family to transition into the post-divorce status and saves everyone time in money. Here is how a virtual mediation may impact your divorce.
Virtual mediations in 2021 and beyond
now that attorneys and mediators across our state have utilized virtual mediations with success for many months, it is unlikely that they will go away even after the pandemic subsides, whenever that is. Well, I prefer to be with a client and a mediator at mediation physically; virtual mediations have their merits. Beyond the obvious fact that it is more accessible from a travel perspective and safer from a sickness and health perspective to keep everyone separated, virtual mediations allow parties to be even more comfortable discussing issues and negotiating with one another.
A mediator can maintain privacy for all parties by negotiating only with one party and their attorney. In contrast, the other two parties can deal and discuss with themselves away from the mediator and attorney/client discussions. this is the same setup as you would have with the in-person mediation, save the driving and find parking near the mediator’s office.
I would point out that virtual mediations increase the need for you and your attorney to be organized. Since you cannot be physical with your spouse and their attorney in the same building, you all will likely need to share settlement proposals, documents, and financial information before the hearing via email. If you are sharing a great deal of information, it would, but have you all have complete incorrect information the first time around so that updates are unnecessary. Being better organized may take more effort, but it can make a huge difference for you and your spouse if you choose to take on a virtual mediation in your divorce.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, I recommend contacting the Law Office of Bryan Fagan today. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. I appreciate your interest in our law practice. We hope that you will join us again tomorrow on our blog as we continue to share relevant and interesting information about the world of Texas family law.