Is your divorce or child custody case going to go before a judge? Will you have to withstand a couple days in court in order to arrive at a conclusion to 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 prior to your ever having to go see the judge. Most cases, no matter if you or your spouse is the most stubborn person on earth, settle. There are exceptions to this rule but take solace in the knowledge that your case is likely to settle rather than go to a trial.
How is that cases settle 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 him 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 offers 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 him or her that the communication can be shared with your spouse.
Another added 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 is representing your interests and therefore can experience some of the same feelings that you do when it comes to tough negotiations. The mediator is able to speak to your spouse and their attorney with no pressure or pretense involved. This allows for better and more fruitful discussions.
Finally, I will point out that mediation will typically occur before both temporary orders and final orders hearings. The subject matter that is discussed in mediations for final orders and temporary orders can be quite different so don’t assume that your second mediation will simply be a repeat of your first. This is not the case and you and your attorney will need to prepare even harder 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 prior to 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?
The costs of mediation 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?
Other than 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 not only saves you time, but also the expense of paying for an attorney to represent you for an extended period of time.
Another aspect of mediation that I always find fulfilling for clients is that you will look at your case differently after mediation. Your mediator will hopefully provide a fresh interpretation of your case and can often provide the sort of frank and honest interpretation of your positions that even your attorney cannot do. I have had good mediators actually 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 is usually indicative of a fair result. Mediation greatly 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 is being dishonest. Discovery usually puts both sides on equal footing in terms of the information with which 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 and can make recommendations to fix problems and often times 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 than the other. A good mediator can help the passive party advocate for themselves and reach good outcomes for themselves. 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 mediators that are tough and fair. 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 so that you understand the issues that 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 individual concerns.