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Mediation and Divorce: The whys and how of it will impact your case

For the better part of a week, the attorneys with the Law Office of Bryan Fagan have shared with you all advice and perspective on divorce cases in Texas. We understand that no two divorces are created equal. What affects you may not be relevant one bit to what affects your neighbor who is also going through a divorce. However, we are doing our best to include bits of wisdom that will apply to most if not all divorces in Texas. Without exception, I can tell you that if you are getting divorced in southeast Texas you will be made to attend at least one session of mediation prior to ever seeing the inside of a courtroom.

Mediation is a straightforward process whereby you and your spouse will mutually agree to a third party attorney being appointed to help oversee a formal settlement negotiation between the two of you. Mediation would take place at the third party attorney’s office. You and your spouse would be in separate rooms with your attorneys and the mediator would act like a ping pong ball bouncing back and forth in between you and your spouse. The end goal is to help initiate settlement negotiations, dialogue and creative problem solving on any issues that have kept your divorce from settling.

The mediator is likely a practicing family law attorney herself and so she will be able to add a different perspective to your case, the judge your case would be before in a trial and any other relevant issues that are arising. All in all, mediation is successful I would say more than 80 percent of the time. That means that your case has an over eighty percent chance of settling in mediation- whether it be for temporary or final orders.

Put yourself in your spouse’s shoes when considering a settlement offer

Sometimes we have a tendency to only consider things from our perspective. When your spouse makes a settlement proposal to you it may be your first instinct think how the offer affects you directly before anything else. This would be normal. The key to making a successful settlement offer, from my experience, is to do so only after you have thought how the offer is going to sound to the other side. Unfortunately, many people do not negotiate in this way.

Before you completely disregard a settlement offer from your spouse it is wise to first think about why he or she would propose something like this to you. What does he or she stand to gain from it? How does it impact him or her? Asking these questions will help you to understand how it could be that a settlement offer like that was even proposed in the first place. Instead of reacting like you received a slap to your face maybe it is wise to first ask why the offer was even made.

Putting yourself in your spouse’s shoes can help you to understand better what your spouse’s goals are and how that settlement offer was designed to further those goals. If you can start to think like your spouse you are likely to be in a better position to have worthwhile and fruitful settlement negotiations with him or her. If you can get to this point before a settlement offer is even made then that is for the best. Losing faith in settlement negotiations early on can seriously hinder the progress of your case and can help assure that a case runs longer than it ought to most situations.

Compromise is the name of the game

Mediation does increase the odds that your case will settle before having to go to a hearing or trial. The reason for that is because you and your spouse will likely be moving towards one another in the negotiation and away from your possibly polar opposite perspectives on many issues.

You need to be willing and ready to back off from some of your strongly held positions in order to settle your case. The reason for this is obvious- your spouse will not be willing to entertain settlement conversations that take only your perspectives into account. If you are convinced that your spouse should only have visitation with your kids once a month that is probably a non-starter as far as settlement negotiations are concerned. A Standard Possession Order (SPO) will provide your spouse with visitation at least on the first, third and fifth weekends of each month, plus holidays. Your offer would not be a good way to start negotiations.

What I tell my clients in many situations is that they can either give up some things that they want in mediation or can push for everything in a trial or hearing. The odds are good that they will not get exactly what they want in a trial or hearing either, but will have paid thousands of dollars for a judge to tell them that. Overall, if you can bend a little on your ideas of what is and is not negotiable in your divorce then you will be better off in the long run.

Understand what you are signing up for and do not agree to a settlement before you do

Divorce cases are complex. True, this isn't necessarily rocketing science that we are dealing with but depending upon the case there may be a number of issues that need to be sorted out in your divorce that you and your attorney need to discuss beforehand how to handle. If you have a great deal or property that needs to be divided, business interests that are at stake or even a complicated situation regarding your children, you need to be able to understand each area before you ever consider settling your case.

Many people just simply get worn down by the settlement process. After a few hours of sitting in a mediator's office, he or she will be willing to sign off on anything that is put before him or her. Before you let this happen to you I would recommend that you slow down towards the end of mediation and make sure that you understand every aspect of your Mediated Settlement Agreement.

For instance, have you fully taken into consideration what you've agreed to regard a possession schedule of your kids? Are you honestly telling yourself that you can make it on time for the drop-off and pickups each week? Did you forget that your boss is no-nonsense when it comes to being tardy to work or leaving early to pick up your kids? Maybe your idea regarding that new drop off/pick up spot isn't so great after all.

What about in regard to the sale of your home? Do you think that you'll be able to find a new place to live in as little as two weeks? Would it be smarter for you to push that to four weeks so that you can leave yourself enough time to finalize an appropriate rental for you and the kids? These little details in a settlement negotiation can leave a big impact for you and your ex-spouse when your divorce is done and over with.

Get a copy of the mediated settlement agreement and read each line with your attorney before signing anything. Some attorneys have a tendency to start planning the rest of their day once the MSA comes out. It’s all over now, they’ll think. Wrong. Make sure your attorney reads the MSA to make sure that you understand it and that every element that you have agreed to is included in the document. It will be a sickening feeling for you to wake up the next morning and realize that something important was left out of the MSA. The trouble you would be in is that now that your mediation session is over you cannot go back and add to or take anything away from the MSA. Get it right the first time and make sure you understand the issues before signing your name.

Work with the attorney so that she can work for you

Make no mistake- your attorney works for you. I’ve been practicing law long enough to have seen examples of many attorneys who are convinced that you as the client are actually working for the attorney. Some attorneys fall into the trap of thinking that we are the experts and that it is the client's honor to be able to work with the attorney. This is not true for most attorneys and is certainly not true for an attorney with the Law Office of Bryan Fagan.

The simple truth of the matter is that an attorney works on behalf of clients like you. We have been hired by you and you are our customer. Our goal should be to provide advice that can put you in the best possible position available. We can do that by communicating with you as the client with as much frequency as is possible. A case goes much more smoothly, however, when you seek to help us along the way to a final resolution of your divorce.

For instance, if your attorney or their staff has reached out to you for an answer to a question, a document or for any matter in between you should respond to that phone call or email as quickly as possible. We understand that you have a job and may not be able to respond to us as quickly as we might like. That’s ok. However, once you do have the time it is appreciated if you can return a phone call or email. Typically we are not looking for a great deal of information or time. Simply a yes or no answer is what we are looking for.

Think about what it is like when you are trying to get a hold of a contractor, doctor, teacher or anyone else who is providing you a service. How frustrating is it for you to reach out to him only to have him take days to get back in touch with you? An update on the installation of those new windows in the guest bedroom? Prepare to wait a couple of days. I don’t think that person will be receiving any sort of recommendations from you to work for a friend.

If your attorney reaches out to you for something think about what a commitment that is in and of itself. Your attorney has many other clients besides you. A phone call to you means that he cannot work on the other cases of any other client. This is a sign that there is something urgent to either tell you or ask you. Be an adult and return the phone call as quickly as possible to avoid any issues.

Present evidence to your attorney as early in the case as is possible

Whether this is verbal evidence that you can provide or documents, you should think hard about your divorce and what may be relevant. Don’t make that decision on your own, however. Ultimately your attorney should be the one to determine relevancy. Don’t think that a particular bit of information that you know about your spouse isn’t important. Let your attorney make that decision.

If you are needing to provide bank or other financial documents to your lawyer it is best to do so early in your case. The deeper you get into your divorce the busier you will be and the more unlikely you will be to attend to the request for information. A great deal of the work that your attorney will be doing is preparing that evidence for usage in a hearing or trial. This does not simply mean telling the judge about the evidence and moving on to the next thing. Your attorney will need to offer the evidence in a trial and have it admitted into the record before a judge can consider it. Depending on the evidence being discussed this can be quite an ordeal and may require some advanced planning to pull off.

Help your attorney and you will be helping yourself

We will be offering more tips on how you can assist your attorney in representing you in your divorce during tomorrow’s blog post.

In the meantime, if you have any questions about the material contained in this blog please do not hesitate to contact the Law Office of Bryan Fagan. We offer free of charge consultations with our family law attorneys six days a week where your questions can be answered and your concerns addressed directly.

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  10. Mediation Essentials for Divorce and Child Custody cases in Texas

Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, KingwoodTomballThe Woodlands, the FM 1960 area, or surrounding areas, including Harris CountyMontgomery CountyLiberty County, Chambers CountyGalveston CountyBrazoria CountyFort Bend County and Waller County.

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