Mediation as a Divorce alternative

How many times have you been told that your divorce is going to be a fight? A war. Some metaphors involve violence. You and your spouse are going to put on Rambo-style bandanas, paint your faces and engage in all-out combat over the kids and your property. The victor will emerge as the most lethal person. The other person will regret ever having married. Sound familiar? Even well-meaning people are prone to giving advice and information like this. Sensationalist to be sure. It can intimidate you a great deal and even cause you to have second thoughts about getting divorced. Better to stay in an unhappy marriage than to go through the drudgery of a divorce.

This is what you must overcome to not only get divorced but to achieve goals within your divorce case. It makes complete sense for you to try and get as much advice and different perspectives on divorce as possible before starting your case. If you have family and friends who have been through a divorce previously then they would be the most likely to be able to help you gain a different perspective. Sometimes these folks will tell you accurate, unbiased information. Other times you will learn that their divorce is not necessarily what you should expect to encounter in your divorce.

On the positive side of things, you do not necessarily have to go through a great deal of fighting and acrimony to get a divorce. I know what you may have heard from other people and what we see in movies and television shows about divorce. The attorneys and staff with the Law Office of Bryan Fagan would like you to know that this is not the norm for a divorce in Texas. It is possible to get divorced here, maintain your sanity, and not have to get down in the muck and mud to do it. There are techniques and processes that you choose to utilize which reduce many of the unpleasant circumstances of a divorce case.

The main method that our attorneys employ with great success in divorce cases across southeast Texas is known as mediation. Mediation is not a fancy or complicated legal process. On some level, it is what the divorce process should be all about. You and your spouse focus on what is most important to both you and your children. Instead of having judges and attorneys play the key roles in completing your case you and your spouse will be the focus of mediation. That is what we mean by an alternative to a typical divorce situation.

We are going to walk you through what mediation is, how you can get signed up for mediation, who can be your mediator, and when the mediation takes place in a divorce. These are the essential questions that we want you to have answers to as you consider a divorce or begin a divorce that has already been filed. Collecting information is a wise thing to do at the outset of a divorce and we hope that today’s blog post from the Law Office of Bryan Fagan can be among the most trustworthy sources of information that you consult before a divorce.

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 how your family’s circumstances may be impacted by the filing of a divorce or child custody case.

What is mediation?

Many people begin their divorce case without ever having heard of “mediation.” We think that’s a shame because it is the single most effective means of settling your divorce without having to proceed to a contested hearing or trial. A judge sorts out issues for you and your spouse in a trial. In mediation, you and your spouse are empowered to be the ones to make important decisions. Here are some essential pieces of information about what mediation is.

Mediation is where you and your spouse, with the help of your respective attorneys, will select an independent, third-party mediator to help you all settle your case. The mediator will frequently be either a private practice family law attorney who also offers mediation services or a retired judge. There are many considerations to be aware of when you are selecting a mediator and you and your attorney can work together to prioritize those considerations so that you can select the mediator who seems to be most ready to help you and your spouse settle your case.

Mediation involves preparation. It is not as if you can simply show up to mediation and expect to be able to settle your case without first having put in a fair amount of work to do so. Rather, preparing for mediation is not unlike preparing for a trial. If you are not able to settle your case in mediation the work done preparing for mediation will be the work done to prepare for a trial or temporary orders hearing. You will collect evidence, organize a strategy surrounding negotiations and think outside the box in terms of how you would like to approach your case. What solutions do you most want to pursue? What counteroffers will you be able to present to your spouse after initial settlement offers are made to you?

Mediation is frequently either a four-hour or an eight-hour event. Depending upon the needs of your case you may select either option. You and your spouse will pay the mediator directly and can divide the costs of mediation in whatever way you would like. Just know that the mediator is paid regardless of whether you and your spouse settle your case. It is best to put your best foot forward, come to mediation prepared and be ready to engage fully in the process. You get out of mediation what you are willing to put in, in other words.

Where is mediation?

Mediation tends to take place at the office of the mediator or the office of your attorney or the opposing lawyer. Usually, you can bank on mediation occurring at the office of the mediator. Mediators tend to have office space that is large so that each party plus their attorney can have their own space to set up camp for the duration of mediation. It is not uncommon to never see your spouse or their attorney at mediation. You will show up and be taken to a room at the office where you will conduct negotiations. Mediators do their best to make everyone as comfortable as possible when it comes to these negotiation sessions. If mediation occurs in the morning breakfast will usually be provided. The same can be said about mediations that occur during lunch or even during dinnertime.

The point is that mediators want you to feel comfortable in mediation. If you are hungry, tired, nervous, anxious, or exhausted by the process it is unlikely that you will be able to get much out of it. Therefore, you can expect creature comforts to be a major part of mediation. The mediator will type out a mediated settlement agreement at the end of mediation if you all can settle any portions of your case. The mediator will provide you with reference materials, their printer, and internet access. Anything that you need to further the chances of your settlement the mediator will provide.

As an alternative, mediation can also occur virtually. Virtual mediation came more into prominence during the pandemic but existed even before that time. For example, clients were able to attend mediation virtually if they lived out of state or otherwise would not be able to be physically present during mediation. It can feel a little stilted attending mediation virtually, but it is a better alternative than not having mediation at all. You can speak to your attorney about your case and how virtual mediation may or may not be a good idea for you to engage in.

Another option for the site of mediation would be a county dispute resolution center. These are places funded by the county where you are getting divorced and can perform mediation at a reduced cost. Some words of caution: mediators are usually volunteers who are doing this work out of a sense of civic engagement and obligation. These are not usually family law attorneys and may not have any family law background. Rather, these folks act more as conversation facilitators than anything else. While this can be helpful in some cases it can present its share of difficulties in other cases. This is especially true if you need a tough, experienced mediator to “knock” some sense into your spouse who is being unrealistic. It is unlikely that a volunteer mediator will lean on any participant in the same way that an experienced family law mediator would.

When does mediation take place?

Mediation usually takes place before temporary orders hearings and trials. Mediation is so effective at helping Texans resolve divorce fights that most divorce court judges require that you attend mediation at least one time before a trial or temporary orders hearing. I have seen judges stop temporary order hearings midway through only to order that the parties go back to mediation and try again to settle their case. Judges will acknowledge how mediation puts the power in the hands of husbands and wives and out of the judges.

Many people will schedule mediation to occur just a few days before trial or temporary order hearings. The reason for this is the ancient principle is as follows: deadlines spur action. If you and your spouse know that there is a firm deadline coming up in your case that will motivate you just a little more to try and settle your case rather than risk, seeing what a judge will order. Even the most accomplished and experienced family court judges are not able to be able to give better orders in your divorce than you and your spouse would be able to figure out together in mediation.

You can talk with your attorney about when to schedule mediation. Sometimes it is the parties who will have scheduling conflicts that make scheduling mediation difficult. Other times the mediator that you all want to meet with will have a tight schedule. For example, let’s say that you are in the military. Certain provisions are in place for military divorces that make those different than civilian cases. If you know of a mediator who does military mediations, then it may be weeks before you can get in with him or her. It may not matter depending on how early you can get mediation scheduled. Or it can be a huge deal. Proper planning is a big part of the mediation process, as a result.

Why is mediation so important?

Mediation is important, without a doubt. It is a unique part of divorce cases that are not courtroom oriented but are also not completely informal as far as how mediation goes. You will be in a structured environment that is more hospitable than a courtroom. However, mediation is ultimately whatever you make of it. You can put forth a great deal of effort when it comes to mediation planning so that you never have to see the inside of the courtroom. On the other hand, if you fail to prepare for mediation, it can sour the entire process and you could be facing a major missed opportunity to settle your case either for final orders or temporary orders. This could end up being one of the most significant regrets that you have in your divorce.

Next, it cannot be overstated how important it is for you and your spouse to be able to maintain a sense of control over your case. While there are many circumstances in a divorce that are beyond your control, there is more to a divorce than many are willing to admit that is completely within the realm of control for both spouses. Deciding that you all are going to be the ones to do the heavy lifting in your case when it comes to ghost dictation can be a great first step towards ensuring that your divorce reflects the needs of your family. No one else knows the circumstances of your family better than you and your spouse. This is true even if you and your spouse are not seeing eye to eye on every issue relevant to your lives.

One of the most important aspects of mediation is that it allows you and your spouse to create orders that are more outside of the box and geared toward your family’s needs than a judge would be able to come up with. I’m sure that many of you are familiar with a standard possession order. This is a typical way for parents to be able to divide up time with one another after a divorce case. It is a plan that sadly court judges will oftentimes utilize in a divorce. However, the standard possession order may not work well for you and your family. If you know that this is the case before a trial, then you should do everything possible to negotiate with your spouse so that you can create more flexible visitation arrangements.

Mediation also allows you and your spouse to potentially save a great deal of money. While it is true that there are costs associated with attending mediation, these costs are a fraction of the costs associated with going to a trial or temporary order hearing. On top of achieving better outcomes for you and your family, mediation can also help you save money during a time when costs seem to be skyrocketing at every turn. Some mediators fit the budget of almost every family in Southeast Texas. From very inexpensive mediators with county dispute resolution centers to extremely expensive mediations with former family court judges, you can account for the budget of your family when considering how to plan for mediation.

The attorneys with the Law Office of Bryan Fagan are extremely supportive of the mediation process. We work hard to make sure that our clients are prepared for mediation to put their best foot forward when it comes to negotiating settlement agreements. While there is never a guarantee that mediation will be successful for you and your family, we believe that often mediation provides a great venue for consensus building and negotiation.

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