What is mediation and how does it work generally?
Mediation is one of the most important tools in the family law attorney’s toolbox to help clients through difficult circumstances in divorce. The irony is, for such an important aspect of a family law case, you may have never heard about mediation previously. Mediation is a process that will potentially help you and your spouse settle your divorce case without having to venture inside a courtroom. Here is how mediation looks in a typical family law case in Texas.
Before both a temporary order hearing and trial you and your spouse will be required by the judge to attend mediation. You and your attorney will submit a few names of experienced family law mediators to your spouse and he or she will do the same. This is not a formal courtroom process that needs to be signed off on by the judge. However, the judge will trust that you and your spouse are engaging in this process without issue. The judge will look at the results of your mediation sessions to make sure you have attempted to mediate before allowing you to come before him or her for a temporary order hearing or trial.
Once you and your spouse have agreed on a mediator you will determine whether mediation will occur virtually or in person. In pre-COVID times the mediation would always occur at the office of the mediator. You would be in one room with your attorney and your spouse, and their lawyer would be in another. The mediator would act like a ping-pong ball bouncing back in between the two of you- communicating settlement offers, and proposals and generally giving perspective on the case and your circumstances. The playing of the "devil's advocate" is an important role that the mediator plays.
The mediator will take any settlement that is reached on any subject and insert that language into a document known as a Mediated Settlement Agreement. A Mediated Settlement Agreement is not a court order, but it is binding on you and your spouse in the sense that neither of you can decide that you changed your mind on something related to the MSA and then try to change things the next day. The Mediated Settlement Agreement will be reviewed by you and your spouse and then signed off on by all parties, your attorneys, and the mediator before leaving that day.
Mediation is typically very effective at resolving most if not all issues that are outstanding in your divorce. At the very least you can expect to settle a great number of issues in your case leaving only a handful or fewer for the courtroom. If you count yourself among those who are skeptical about your ability to work alongside your spouse in any setting, allow mediation to be a situation where you put your skepticism to rest. It is my experience that most people can settle most of the outstanding issues of their cases in mediation.
Who will the mediator be?
This is almost as important a question as what are the issues that you and your spouse will be mediating through. Most likely, your mediator will fall into one of two categories- 1) the mediator will be a currently practicing family law attorney with experience in your geographic area, or 2) the mediator will be a former family court judge. Either category of a mediator has its advantages and disadvantages. Let's walk through what mediation could look like with either type of mediator or how that can impact your divorce.
Most mediators are currently practicing family law attorneys. As I am sure you could imagine there are more family law attorneys than former judges so by sheer numbers you are more likely to be working with a currently practicing attorney. By working with a mediator who also practices family law you can be assured that the mediator knows the type of case you have, what your circumstances are, and has some experience helping people get themselves out of tricky or complicated situations.
Let’s begin with discussing how your mediator will have cases of their own in front of the judge in your case before. This is important in that the mediator will be able to give you an idea of how the judge in your case will likely rule on certain contested subjects in your case. For example, you may feel strongly that you should be named as the parent who has the primary responsibility to declare the residents of your child. The only real issue that you may have in your entire case is that one period however, the mediator in your case may be able to guide you and provide you with some information about how the judge typically rules based on your circumstances and situation. This may help you to make a better decision about whether to move forward with that goal in mind.
The important part of working with an experienced family law mediator is that he or she would be able to provide you with creative proposals on subjects that you and your spouse had been unable to work through up until that point. Consider a situation where you and your spells have young children but have not yet been able to agree upon a method of dividing possession time. This means that you could go to the mediator and he or she could provide you with some perspective on options when it comes to negotiating on this subject. Creative problem solving on issues regarding possession and visitation is possible with an experienced family law mediator because he or she has walked with the clients just like you and they're proud of practice.
A good family law mediator will also be able to hold you accountable and provide you with a dose of reality when it comes to your case and your chances of success in a trial. The advantage that an experienced mediator has versus you, your family, or even your attorney is that he or she is completely objective in providing you with information. What you thought was a good idea or a reasonable position to take in your divorce negotiation may turn out to be something of an opinion that your mediator does not share with you. You have course can disagree with the mediator and the mediator tells you specifically that he or she is not there to provide you with advice. However, it is nonetheless important for you to be able to consider the perspective of the mediator when going through the process. You and your attorney will have plenty of opportunities to discuss the matters related to mediation and to determine whether you want to change course or continue to negotiate in the way that you have to that point.
What are some of the main benefits of attending mediation?
Mediation can be extremely beneficial to your case. We have already talked about how mediation is a process that can greatly increase the likelihood of your case settling. When it comes to most divorce cases you and your spouse would probably fall into the category of not being on the best of terms with one another period as a result, you may have found that negotiation to that point in the case has been difficult. There is something about covering complex subject matter with your spouse in a pressure-packed environment that is not necessarily conducive to arriving at just settlements.
Mediation, first, offers the best of all worlds when it comes to the ability to settle your case. On the one hand, it is a somewhat casual environment where there is no judge, court reporter, or anything that makes you feel like you are in a courtroom. Being in a basic office environment is more familiar for most of us than being in a courtroom. For this reason, you may feel like you can express yourself more fully and be more honest with yourself and your spouse when it comes to the negotiation process. The courtroom is 8/4 in place for most people and as a result, you may find that you are not as comfortable there as you would be in other places. The ability to think more clearly and more thoroughly about several different subjects related to your case is a great benefit of Mediation.
On the other hand, mediation is usually scheduled to occur just a few days before either your temporary orders hearing or a trial. Therefore, hanging over the entire proceeding is the knowledge that if you fail to settle your case in mediation you will be moving forward to a trial or hearing in the coming days. It is a balancing act to understand that Mediation is more made back in a courtroom but that it still holds with it important deadlines. Deadlines spur action on the part of people going through a divorce. I would expect that you would not be the exception to this rule. As a result, because mediation occurs just before a trial or hearing date then you may be especially motivated to get something accomplished in mediation versus going forward to a trial or hearing.
Why is mediation more likely to yield a favorable result than a trial?
At this stage, you may be asking yourself why This blog post seems so one-sided in favor of mediation over trials or hearings in terms of arriving at outcomes for people like you going through a divorce. Without a doubt, mediation allows for the fingerprints of you and your spouse to be felt a great deal more than a trial. In the trial, you and your spouse will both be able to submit evidence for the judge to consider. However, ultimately it is the judge’s decision that will make the difference in determining how your case shakes out.
For one, it is a risky proposition to put your case to a judge. While your attorney and you can make assumptions and educated guesses about how a judge would likely rule on a particular subject the truth of the matter is that you truly do not know for certain. As a result, you risk putting your case before a judge whose thought process and decision-making cannot accurately be known in advance. It is a horrible feeling to presume a judge will decide of one sort and then find out in hearing that he or she is going to rule the other way. Situations like that show just how important it is to be able to work with your spouse in mediation so that the two of you can play a direct role in the outcome of your case whether at a hearing or a trial.
A family court judge will do their best to get to know you and your spouse but at the end of the day relatively short trial or hearing will not be nearly enough time for him or her to learn the complete Ins and outs of your case. With that said, the judge will never learn your life as thoroughly as you and your spouse know it. Even if the two of you do not see eye to eye on every subject related to your case the fact remains the two of you, we'll still know your case better than anyone. Shifting the decision-making authority to a stranger just because the two of you cannot agree on how to conclude your case can be a major mistake.
Mediation is also a set your cards on the table and see where you stayed versus where your spouse stands. All the theories that you worked out with your attorney before mediation are going to be put on full display to determine whether or not they are going to be effective arguments. In that way, mediation is sort of a testing ground for the arguments you will be making in a trial. If your arguments or evidence failed to impress a mediator, then it is possible at the same will be true of a family court judge. While the realization that your case isn't as strong as you thought it was can be somewhat disheartening it is better to learn this reality in mediation than in a trial or contested hearing.
Another reason why mediation is so good at helping people like you negotiate favorable outcomes for your divorce case is that you are in a setting where a settlement would seem to be the best option. There is something about the atmosphere of mediation that makes you almost want to settle your case. The time, money, and hassle associated with the divorce can all be set to the side for a moment if you and your spouse were able to settle the case in that setting. You can avoid situations where you were having to continually negotiate on matters related to your divorce or even attend, I contested hearing her trial simply by settling your case in mediation. Sometimes this is not possible but in many circumstances it is.
Final thoughts on divorce case mediation in Texas
The cost of mediation can vary depending on several factors. For the most part, the costs of mediation are not covered by your attorney’s fees, retainer, or anything else. Rather, you and your spouse will both pay an additional sum of money to the mediator for their services. The cost depends upon the experience level of the mediator, the issues in your case as well as the length of the mediation session. Full-day mediation sessions are available for more complex cases. Most mediations for the clients of the Law Office of Bryan Fagan are half-day or 4-hour mediations.
If you and your spouse can settle your divorce case and avoid a trial, then typically the plaintiff will take the mediated settlement agreement and draft court orders based on that document. The language used in the mediated settlement agreement will be much more casual and informal than what will be required by a family court judge. As a result, an order will need to be drafted and you cannot simply copy and paste the mediated settlement agreement into your final decree of divorce.
Your job, and that of your spouse, will be to review the new order to make sure that it incorporates the agreements of you and your spouse from mediation. It is best to ask questions and go over misunderstandings at this stage of a case rather than after the divorce has been granted. You should make sure that you understand what is included in your final decree of divorce before signing your name. The last thing you want to do a sign your name to a final decree of divorce that you don't understand simply because you want the case to be over with.
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, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.