5 Things to Know About Mediation

The attorneys with the Law Office of Bryan Fagan are big fans of mediation. Mediation is a process whereby you and your attorney and your opposing party and their attorney will mutually agree to name a third-party attorney as a facilitator of your settlement negotiations. In many cases, this ends up looking like you and your opposing party going to that mediator’s office to begin discussing in earnest the possibility of a settlement. There are many areas of the law that utilize mediation to resolve disputes, but we believe that no other area of the law is mediation so important as it is to Texas family law.

In today’s blog post from the Law Office of Bryan Fagan, we are going to walk through 5 things that you need to know about mediation. Mediation is an incredibly important subject in your family law case but in some situations, it does not receive the attention that it deserves. However, our goal is to help you put mediation into context, learn how to prepare for mediation, take advantage of the time you are provided, and then avoid costly and sometimes painful litigation. Along the way, if you find that you have questions that are not answered in this blog post then you can feel free to take the next step and contact the Law Office of Bryan for a free-of-charge consultation.

Mediation isn’t necessary but it may as well be

While there is no requirement in the Texas family code that you and your opposing party attend mediation during your family law case that does not mean that you can necessarily avoid mediation altogether. The reason for this is that many family court judges will require that you attend mediation at least one time before a temporary order hearing or a trial. There are many reasons why mediation is so highly recommended in the context of a family or case. By the same token, there are many reasons why a family court judge may require you to attend mediation before you can move forward to a hearing.

Mediation tends to be very effective because it empowers you and your opposing party to make decisions for yourselves. Ultimately, nobody understands your situation better than you and your opposing party. The two of you may not be on great terms now but when it gets right down to it being able to handle your affairs and not have someone else need to step in to intervene can be more efficient and allows for greater autonomy. When it is all said and done you don’t want to put yourself in a situation where you feel like someone else has played more of a role in settling your case than you and your spouse. 

When you file a divorce or child custody case there are a lot of issues to sort through from the very beginning. No matter if your divorce involves children or not you will still need to figure out how to structure your life during the divorce case. Moving out, paying bills, paying the mortgage, and attending to other matters associated with your life is not easy. This is especially true when you consider that you and your spouse are probably not on the best of terms and may not even be speaking to one another right now. When you are facing all of this it is easy to assume that you and your spouse are going to have to go the distance and see a judge at the end of your case.

The same pessimism may be a part of your child custody case, as well. When you are going through a child custody case it is not out of the ordinary to assume the worst about the outcome of your case. Everyone has doubts when going through an unfamiliar or difficult time in their life. As human beings, our assumptions about what a case can look like may center around our own negative experiences in the past. When it comes to these cases you and your co-parent have options. It is not necessarily the case that the two of you will need to rely upon a family court judge if you can see to it that your child comes first period working with an experienced family law mediator can be the difference in your case between a good and a bad outcome.

You can ask your attorney about the policies that your judge has when it comes to mediation. Different courts have different rules and expectations when it comes to attending mediation. Most courts will require that you attend at least one session of mediation before attending either temporary orders hearing or a trial. The reason for this is that courts understand how effective mediation is at resolving disputes. Judges are reasonable in presuming that the outcome for you and your family can be better and likely would be better in mediation than going before him or her for a contested trial.

The bottom line is that different courts will have different requirements for mediation. One judge may be very specific about the list of mediators that you and your spouse can choose from. In other cases, judges will be more hands-off and may not even require you to attend mediation at the end of the day you should be prepared for just about anything when it comes to mediation in your case. There is no secret that mediation is important and is assembly required by most courts. However, what separates parties when they attend mediation is their willingness to prepare diligently leading up to the event.

Preparation is essential when it comes to mediation

You can think of mediation as a major project or assignment like one that you would have had in school. We all know deep down what sort of students we were. Were you the type of student who would tend to procrastinate and put off until a later date completing your work or were you the type of student who would prepare diligently and not wait until the last minute to do your assignments? No matter what kind of student you were I think we can all agree that there is a better way to go about our work assignments. Just because you know deep down you are not the most diligent that preparation does not mean that you cannot become that person at least for your family law case.

What does preparing for mediation look like? It may look different depending on whether you are going through a divorce or child custody case. For a child custody case, you need to have all your ducks in a row as far as the major parts of your child’s life or concern. You can walk through issues like child custody, conservatorship, child support, visitation, and possession and have a plan in all those areas. What is your ideal result after the mediation is said and done? What are you willing to negotiate on? Which issues are the most and least important to you and why?

From there, you can speak to your attorney about your goals and then he or she can guide you on which are likely to be the most important to your case and which ones you need to be able to be more flexible on. If you have never been the primary caretaker of your child but are holding out hope that you will be able to become the primary conservator of him or her then you may need to take a step back and reevaluate that goal. That’s not to say that you have no recourse when it comes to accomplishing things that seem important to you. However, working with an experienced attorney and in mediation can help you by better prioritizing your goals and setting yourself up for the next stage of your case.

Preparation for mediation also looks like having all the documents that you need to be able to negotiate. These could be financial statements from your investments, your latest mortgage balance on the house, or statements from your different creditors like student loans and things of this nature. The more prepared you are to negotiate all these subjects the better period coming to your spouse and asking for different settlement considerations does not come off particularly well when you are not prepared to negotiate with specific information. Having multiple copies of documents or making them available to your spouse and their attorney before mediation via e-mail is a great idea.

Ignore distractions and focus on the task at hand in mediation

Attending mediation can certainly be a stressful time. Without a doubt, the results of what happens in mediation can impact your life a great deal moving forward. One of the points that I make to clients frequently about mediation is that mediation allows for you and your opposing party to have one another’s undivided attention. In our daily lives, we rarely have an opportunity to focus solely on one thing period many people who work remotely have activities at home or situations involving their parents or family to concern themselves with. Some distractions are offered through our computers and phones. That’s not to mention social obligations, television, and a host of other considerations that can be distracting.

Even if you know that negotiating through these subjects is important, we can all succumb to distraction from time to time. These distractions can be the difference between having our undivided attention on an important subject and finding our focus diverted for any number of reasons. In the real world, we will always have excuses as to why we were not able to fully pay attention to our family law case. However, in mediation those distractions no longer apply. For as long as you are in mediation you will have the option to turn your phone off simply pay attention to the circumstances at hand.

You will have no better opportunity than in mediation to focus intently on your goals and your case. It is almost as if you were being lifted from your day-to-day life and placed into a situation where you have no choice but to truly focus on the task at hand. You can ignore your other competing interests for a short time. To accomplish meaningful goals in your case.

What many people find is that they are surprised at just how effective they can be as negotiators when they have no other competing thoughts in their minds. You may have been discouraged at points in your case because you had not been able to settle yet with your opposing party. You may even be wondering if it was possible to settle your case considering the degree of difficulty you have been having with negotiations to this point. The reality of the situation may be that you and your opposing parties simply have not yet been able to have the focused negotiation that your case requires. Mediation can be that first opportunity you all have to do just that.

What happens in mediation is written down if a settlement is reached

For the most part, mediation is informal. This means that what you and your spouse or opposing party talk about in mediation does not go into a formal record it is not something that you can use as a bargaining chip against the other person in the future. However, with that said mediation does put you all in a position where your settlement agreement would be written down if you can settle on any issue in your case. 

This is done through a Mediated Settlement Agreement. A Mediated Settlement Agreement is a document that will be created by the mediator in your case. This agreement will contain all the settlements that you reached in your case. It may be that you settle all the issues in your case during mediation. Or it could be that you all settle only one or two. Regardless of what you settle in your case the mediator will type up the agreement and put it into writing. It is your job and that of your attorney to make sure that what is typed up in the mediated settlement agreement is as close to what you all settled upon as possible. The last thing you want to do is go home that day and see that the mediated settlement agreement does not accurately reflect what you thought the settlement to be.

Once signed off on by you and your opposing party, the mediated settlement agreement is ironclad. There is no opportunity for you to wake up in the morning the following day and try to go back on your word or change what you agreed to. A mediated settlement agreement in your case may even survive a non-suit or a dismissal of your divorce by a family court judge. The point is that once entered, a mediated settlement agreement should be taken seriously and can end your divorce if all issues are agreed to in mediation.

Mediation yields better results when you have an attorney

To close out today’s blog post we would like to discuss just how important it is to have an experienced attorney with you in mediation. Like anything in life, if this is your first mediation then there will be parts of it that you will be unprepared for. Just think back in your life to all the first times that you have had to do something. You were never as good at it the first time around as you were on the 3rd or 4th. Not to mention how good you were on the 20th or 25th time. The same applies to mediation. Even if you are completely knowledgeable about the circumstances of your case there is something communication that requires you to have preparation and experience to meet the goals for your case.

Mediation is such an important part of your case and can shape your life and that of your children so dramatically that not taking advantage would be a big mistake for you. Working with an attorney helps you to prepare for mediation but also to negotiate once you get to the big day itself. You can go through all the different steps involved in your case, watch YouTube videos, and read blog post articles but you will never be able to find a good substitute for the attorney’s experience. Consider what you have to gain and what you have to lose before deciding on whether to hire an attorney for your family law case.

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 can be 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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