Is your divorce or child custody case going to go before a judge? Will you have to withstand a couple of days in court to conclude your case? These are common questions and concerns that many people share with me during the initial stages of their family law case.
If you watch television or go to the movies, you may think that you’re more likely than not to find yourself in that position- unable to agree to anything with your spouse and leaving it all up to the mercy of a judge who does not know you, your spouse or your child. This can be an intimidating prospect if you are a current or potential party to a family law case.
Allow me to assuage your fears, then. The vast majority of family law cases settle before you ever have to see the judge. In most cases, no matter if you or your spouse is the most stubborn person on earth, decide. There are exceptions to this rule but take solace in knowing that your case is likely to pay rather than go to a trial.
How are that cases settled with such frequency?
It’s not by magic, luck, or even the skill of your attorney that will cause your case to likely settle before trial- though those are all factors that could play a significant role. No, the reason, in my opinion, is that mediation is effective, relatively inexpensive, and court-mandated for most family law courts in our area. From my experiences as an attorney, people think that mediation is a lot of things, but most people don’t know exactly what it all entails.
Today’s blog post from the Law Office of Bryan Fagan, PLLC, will seek to remedy that by going over in detail what mediation is, how it impacts family law cases and what you can do to prepare for it.
Mediation in a nutshell
Mediation is a process by which you (and your attorney) and your spouse (and their attorney) mutually agree to appoint a third-party attorney (someone who has no relationship to your case) to intervene and act as a settlement facilitator for your divorce. In most situations, the mediator will be a practicing family law attorney or herself, which allows you to learn from an independent source what the strengths and weaknesses of your case are.
The mediator functions by communicating settlement offer from your side to theirs and, along the way, will help problem solve, negotiate and play devil’s advocate with each side. Communications are private between you and the mediator unless you tell them that your spouse can share the contact.
Another benefit of negotiations through a mediator is that a great deal of the emotion is removed from the conversation. Even when you hire an attorney, your attorney represents your interests and, therefore, can experience some of the same feelings as you do in tough negotiations. The mediator can speak to your spouse and attorney without pressure or pretense. This allows for better and more fruitful discussions.
Finally, I will point out that mediation will typically occur before temporary and final orders hearings. The subject matter discussed in mediations for last and interim orders can be quite different, so don’t assume that your second mediation will repeat your first. This is not the case, and you and your attorney will need to prepare even more challenging for a final orders mediation because the subject matter is usually more complicated when you talk about your family home, dividing community property, and long-term custody issues for your children.
Will you have to go to mediation?
Yes, in all likelihood, your judge will require that you attempt mediation to resolve your case before either a temporary orders hearing or trial. The reason is that, as we’ve already discussed, mediation is by and large very successful for most cases. Secondly, courts are so overburdened with litigants that judges are more than happy to sign off on a divorce decree that was settled upon in mediation.
What does mediation cost?
Mediation costs are typically a fraction of the costs associated with taking your case to a temporary orders hearing or trial. In the Houston area, mediation fees range from $300-$500 for a half-day (four-hour session). Full days are unsurprisingly about twice that amount. Keep in mind that these costs are a fraction of what it would cost you in terms of dollars spent and time on a temporary orders hearing or trial.
What benefits does mediation offer?
Besides being far less expensive than a trial or temporary orders hearing, mediation allows for a faster resolution to a case. Consider this: if you are attempting to modify a divorce decree, a trial could take months to get to. However, a mediation session could be had within weeks of filing your modification case. This saves you time and the expense of paying for an attorney to represent you for an extended period.
Another aspect of mediation that I always find fulfilling for clients is that you will look at your case differently after mediation. Hopefully, your mediator will provide a fresh interpretation of your case and can often give the sort of honest interpretation of your positions that even your attorney cannot do. I have had good mediators anticipate problems down the road for clients and help us to solve them before they even occur.
I always tell clients this: if you are leaving mediation and feel like you left something on the table- meaning that you feel like you gave up a little too much- you probably had a good day. The reason is that your spouse or ex-spouse likely feels the same way that you do. When both sides feel like they could have had a little better outcome, that usually indicates a fair result. Mediation dramatically increases your chances of having this sort of fair outcome, in my opinion and experience.
When could mediation not be effective?
Especially in divorce cases, mediation sometimes fails to provide the advantages listed above when one party is withholding information or dishonest. Discovery usually puts both sides on equal footing regarding the data they are operating, but this is not always the case. If you come to mediation with all the documentation you would need to negotiate in good faith, but your spouse does not, you will likely not have a good outcome.
With that said, a mediator can help you identify the deficiencies in the case, make recommendations to fix problems, and often return to mediation when documents are collected, or information is provided in discovery.
Last, mediation often results in unfair situations when one party is more passive. A good mediator can help the passive party advocate for themselves and reach good outcomes. However, if you have selected a “go with the flow” mediator, this is not always possible. A good piece of advice is if you know that you are passive and not adept at standing up for yourself, you and your attorney should recommend tough and fair mediators. A wallflower mediator will not be your friend in this situation.
Whether you have a divorce or child custody situation, the attorneys at the Law Office of Bryan Fagan, PLLC, are here to help.
If you have any questions about your family law situation, please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. Whether you are familiar with how family law cases work or are new to the process, our attorneys will take the time to walk you through the process to understand the issues you will face. We offer free of charge consultations with one of our licensed family law attorneys six days a week, where we can answer questions and address your concerns.