Understanding the Role of a Mediator in Texas Divorce Law

Mediation is the most effective tool available to a person going through a divorce to resolve conflicts and ultimately complete their divorce. If you are experiencing concerns about how your divorce is going to proceed or that you and your spouse are not going to be able to settle your case amicably then this blog post is for you. We are going to discuss how you can utilize the opportunities presented in mediation to help you obtain a divorce in the most painless manner possible. Going through a divorce does not have to be overly difficult but for many people, it ends up being that way. Mediation is a means by which you can bypass these difficulties and instead focus on the benefits that it offers. 

However great mediation is for resolving conflict in divorce cases, the bottom line is that you need to have a good mediator to have a good experience in mediation. You not only want your mediator to be a good one, but you want him or her to be a great one. The mediator is the master of ceremonies as far as the mediation is concerned. He or she is the straw that stirs the drink and makes difficult cases seem easy and impossible cases seem like a settlement may happen. A mediator can’t make a miracle happen but he or she can make it seem like they can. 

At the Law Office of Bryan Fagan, we want you to feel prepared for your divorce case as much as possible. Every case has its twists and turns- things that come out of nowhere and leave you wondering where you went wrong. There are certain events in a divorce that you cannot prepare for. However, you can be more proactive in a divorce when you have an attorney on your case who knows how to navigate the waters of divorce. Our attorneys have been fortunate to serve so many of our neighbors here in southeast Texas that we know a thing or two about conflict and the importance that a great mediator can play in your divorce.

If you have any questions about the material that we can write about in this 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’s circumstances may be impacted by the filing of a divorce or child custody case. 

What is mediation?

Before we can get into why a mediator is so important to the success of your divorce, we ought to define what mediation is. Conflict is a central component of most divorces, unfortunately. The reality is that if there were no conflict in your relationship with your spouse you probably would not be going through a divorce. As such, when conflict rears its ugly head, it can be difficult to resolve those issues without resorting to the last solution that anyone wants to involve in: going to court. While television and movies can cause us to believe that trips to the courthouse are the norm for Texas families going through divorce that is not exactly the case.

While it is true that you may find yourself in court at some point in your divorce it is far from a given. What could end up happening is that you have a relatively small hearing on an issue related to discovery or clarification on something from your temporary orders. Maybe your spouse refuses to make your child ready for your weekend periods of visitation. These are issues that can feel important at the moment but are less so in the grand scheme of things. For what it is worth these are topics that can stand to use some de-escalation and work towards finding a resolution. However, they are a far cry from going to court for a divorce trial. 

Here is where mediation comes into the picture. First off, most family courts in Texas require that you attend mediation for at least one set before you try to take your case to a trial or temporary orders hearing. For one, you and your spouse are extremely likely to settle your case in mediation which can lessen the burden on the overburdened family courts of Texas. Next, judges understand that you and your spouse are better at solving the problems of your marriage and divorce than he or she will be. Indeed, spouses like you and yours may not see eye to eye much in a divorce. However, when the chips are down you two are still likely to be able to work out your problems easier than a judge can. This is true even after a multiple-day trial.

Preparing for mediation

I tell clients all the time that you can wander into a divorce, but you cannot wander out of a divorce. What led you to get a divorce in the first place may be unique to you and your spouse. However, what every person who goes through a divorce has in common with one another is the need to develop a coherent strategy on how to attack your case. It is not sufficient for you to be satisfied with merely getting out of your case in one piece or in keeping “some” of your property. Rather, you need to be able to seek the best possible solution for your case considering the circumstances that you find yourself in. 

Preparing for mediation is not something that you need to do alone. Nor is it something that you should wait to do until you are just hours away from your mediation date. Rather, preparation for mediation should begin before your divorce does. While many people that go through a divorce do not know the basic steps of a case you are ahead of the game because you read our blog! That means you know what to expect in your case and what the basic steps are for you to be able to complete your divorce successfully. A successful divorce is not something where you need to be able to push your spouse around and get what you want in all things. That is not reasonable and probably not in anyone’s best interests. Rather, accomplishing your goals as much as possible equates to success. 

You should seek out goals that suit your needs and that of your children. Consider your case now and where your life could be in just a few years. If you do not think that you can plan out that far then you should not feel bad. However, there are some aspects of your case that you can certainly plan for soon including being able to survive on your own after the divorce. If you have not worked for an extended period or may have never worked before then being able to find a place to live and income to buy food and utilities with is an absolute necessity for you. Do not wait until the day before mediation to figure out how you are going to approach mediation. Rather, take the steps that you can at the beginning of a case to prepare. Preferably, you can approach the case as a person who has time to prepare as you are filing your case. 

First, take a look around your home and begin to inventory your property. This just means getting a better idea of all the property that you own. You can make a list of all the properties in your home, any real estate, and other investments that you own and start to organize the property by type, date of purchase, or by any criteria that you want. Eventually, you will need to estimate the value of each item so that you can gain a better understanding of what the community estate is worth. When you have all of your property laid out in front of you on a piece of paper you can perform the same exercise for your debts. Although it would be easy to forget about your debts, these will need to be accounted for in the divorce. 

Getting up-to-date information for your investments and bank accounts is critical. You can find out all the accounts that you have before the mediation setting but you should pull these balances off the internet or your most recent statement on the night before your hearing. The last thing that you want to do is go to mediation with incomplete or inaccurate information. Your mediator relies upon you bringing inaccurate information to make the mediation settlement discussions go that much easier. If you go to mediation with only half of the information that you need then you put yourself in a position where you cannot get as much out of mediation as you otherwise would have been able to. 

Many times, our attorneys will create mediation notebooks for themselves and their clients. Sometimes it will make sense to make copies of all the documents so that your spouse can have a set during negotiations. I cannot emphasize how nice it is when two spouses in a divorce agree upon what the facts and figures are. It is almost impossible to negotiate fairly when you and your spouse cannot agree on what is up and what is down, so to speak. Your spouse will hopefully be prepared similarly and may have the same plan laid out when it comes to preparation as you do. 

Going to mediation

Mediation is not a war of words, and it is not going to be a confrontation likely. Rather, you and your attorney will be seated in one room at the mediator’s office, and your spouse and their lawyer will be in another. Removing the emotion of a divorce means not having to battle with your feelings of anger, mistrust, or being hurt. If you and your attorney are in a room that is far enough away from your spouse, it can feel like you are in a completely different universe. Use this to your advantage by not feeling pressured to agree to something that you are unclear about the consequences of is not a good plan. It sounds like you are flying by the seat of your pants more than anything else. We discussed already how to develop a mediation plan. Well, mediation is the moment in time when all that preparation will begin to come in handy. 

Depending upon the circumstances of your case, the mediation session can last anywhere from four to eight hours. If your mediation is going to be a full-day session, then you can expect that the mediator will have food options for you to choose from. You pay for mediation so the food isn’t exactly free, but it is a welcome sight if you have to sit somewhere for an extended period. Food and drink can help your body function better and you will be more likely to stick around to finish negotiations. 

In closing out today’s blog post from the Law Office of Bryan Fagan I would like to share with you what the mediator does. Keep in mind that every mediator is different in terms of how they run their mediations and conduct business. Their goals are all the same: to help you and your spouse settle the outstanding issues of your case. However, you also need to be prepared to answer questions, provide counteroffers and justify what you are asking for in mediation. The mediator can function better if you can provide him or her with better information and are prepared for negotiations. 

What does the mediator do in mediation?

An experienced mediator will take the time at the beginning of a mediation session to introduce themselves to you and your spouse. The mediator will explain their role in the process and talk to you about what you can do to help your case settle. A mediator does not represent you or your spouse. Rather, the mediator is an independent third party who is there only to help you reach a settlement agreement. A mediator will not be able to provide you with legal advice but can offer their perspective on the case based on their experiences.

In most cases, a family law mediator is also an experienced family law attorney. That means that the mediator who is helping you understands what it means to go before the judge that your case has been assigned. You can listen to the opinions of your mediator when it comes to going to court with the judge based on how that judge issues rulings in cases like yours. You can use that perspective to help you make decisions on whether it is better to accept a settlement offer from your spouse or to proceed to a trial.

One of the most effective ways that a mediator can help you to think creatively in a divorce is to play devil’s advocate during these negotiation sessions. Throughout a long divorce spouses can become set in their ways and inflexible about the way that they approach a case. Even when new information is brought forward it can be hard to change your mind or change your position on an issue. When a mediator is there to assist you in settling your case karma that experienced mediator can force you to look at the issue from the other person’s perspective or add in a variable that might cause you to think twice about the position that you were taking. All the mediator is trying to do is keep you from looking at one issue with the same mindset. Rather, it can be beneficial for you to approach the subject with a fresh set of eyes and ears.

If you and your spouse are successful at settling your case, then the mediator we’ll draft a mediated settlement agreement. This settlement agreement will be the basis by which you and your spouse draft a final decree of divorce. Your mediated settlement agreement must reflect the agreements that you and your spouse had come to during mediation. Sometimes the specific language in a mediated settlement agreement needs to be extremely precise. For that reason, you should work closely with your attorney in reviewing the document and should ask the mediator about why he or she chose to use a certain word in a certain position or why he or she left out something that you think ought to be included in your settlement agreement.

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

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