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Why mediation may not be appropriate in your divorce from an abusive spouse

If you are a consistent reader of the blog posts from the Law Office of Bryan Fagan, PLLC then you know that your attorneys are big fans of mediation. Mediation is a process by which two parties to a legal case can attend a formal negotiation session using a mediator to coordinate and communicate settlement offers. The purpose of mediation is to settle any outstanding issues in your case and to avoid having to spend the time, money and resources that it takes to go to trial. While not every divorce can be settled in mediation the majority are.

In southeast Texas, courts in many counties mandate that you attend mediation prior to requesting a hearing or trial. I have even seen judges who do not believe that enough progress was made in the first mediation session and as a result, a second was ordered. It’s amazing what getting people into a controlled environment can do for the ability of a case to settle. What may have seemed like insurmountable issues before may now seem within reach of settling.

Mediation may not be appropriate when the other party to your divorce has exerted an inappropriate level of force towards you that has led to an uneven balance of power. For instance, it may not be safe for you to attend a mediation session where your abusive spouse will also be present. While protections can be put in place to keep you and your spouse separated there are no safeguards that can be 100% effective. Today’s blog post from the Law Office of Bryan Fagan, PLLC will discuss why mediation may not be appropriate or effective in your divorce.

The reasons why your attorney may advise you against mediating

A condition that pretty much has to be in place prior to the mediation session beginning is the ability of you and your spouse to communicate about the big issues in your case. It is normal for divorcing spouses’ to have strained lines of communication and for you to not see eye to eye on every subject associated with your case. It is also normal to be skeptical of you and your spouse’s abilities to come together to settle your case given your personal history and the circumstances associated with your case.

However, what is also normal in a divorce is to have your spouse and you make progress on those communication skills in mediation. While you will not be communicating with one another directly, you will be communicating your values and positions to your spouse through settlement offers and counter-offers. The mediator will help you to see where your spouse is coming from and will add an additional perspective as to how to approach the offer/counter-offer.

If you and your spouse are absolutely not in a position where you can be expected to develop or enhance your communication skills (even indirectly) then mediation may not be a worthwhile endeavor to pursue in your divorce. This goes above and beyond any personal safety concerns that you have in regard to being physically close to your spouse.

If you have been the victim of abuse at the hands of your spouse then he or she likely has some degree of physical, emotional and relational control over you. As such, you run the risk of agreeing to settlement terms due to fear and intimidation. Your attorney should understand this and decline any invitation from your spouse’s attorney to attend a mediation session. If your judge typically mandates that mediation is attended a motion should be filed to waive this requirement based on your particular circumstances.

Inability to discuss the issues prior to mediation: As a family law attorney I can tell you that some opposing attorneys in divorce cases I have handled are extremely difficult to pin down on their client’s positions on a range of subjects. My job is to identify the important issues for you as my client and to attempt to open a dialogue on those with the opposing attorney prior to attending mediation.

This is doubly true if there is abuse involved in the divorce. I would be wary to schedule mediation if I could not learn what your spouse’s intentions and opinions on a wide range of subjects are before the mediation begins. If their attorney will not discuss these subjects with us prior to mediation I would not feel like the mediation session would be worthwhile and productive for you. In that scenario moving forward would not be practical.

A note on joint decision making in determining rights and duties regarding your child

If your spouse has a history of abuse against you or your child it is probably not reasonable to have him or her be on par with you in regard to the ability to make parenting decisions. Joint decision making means that you and your spouse will need to be able to communicate any important parenting decisions together in hopes of reaching a resolution together. The often used term of “co-parenting” is especially important here.

Frequent contact with an abusive ex-spouse sounds like an opportunity for that spouse to continue to engage with you in the bad behaviors that led to the breakdown of your marriage. Your child is a subject that is near and dear to your heart and gives your spouse an opportunity to exert the control that he or she loves to hold over you. Whereas their behavior was not approved by anyone during your marriage, if your spouse has joint decision making as a part of your divorce decree, it could give him or her the impression that their tactics and attitudes are approved of by the judge.

Due to your spouse’s inability to conduct themselves in an appropriate manner during the course of your marriage, I would argue against agreeing to the sharing of parental rights on a joint level. It may end up that your spouse does have a fair amount of independently held rights when it comes to your child. However, you should do what you can to retain whatever autonomy over your child and yourself that you can as a result of your divorce.

The Divorce Decree as it pertains to a case involving an abusive spouse- tomorrow’s blog post topic

We will conclude our series of blog posts on abuse and divorce by discussing some topics related to the final orders of divorce in Texas- the Final Decree of Divorce. In the meantime, if you have any questions regarding today’s blog post or any other topic in family law please do not hesitate to contact the attorneys with the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations with one of our licensed family law attorneys six days a week. We can answer your questions and talk with you about the services we can provide to you and your family as clients of ours.


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