The image that I believe most people have of a family law case is two lawyers in a courtroom yelling at one another in a back and forth manner. The judge feverishly is banging their gavel on the bench in an attempt to regain some semblance of order in the courtroom. While this is certainly an entertaining image to have, it is not exactly accurate for most people who will be going through a family law case in Texas.
For the most part, you can expect that your family law case will be resolved in mediation. Mediation is a process where a third-party attorney acting as a mediator helps you and your opposing party settle any outstanding issues in your case. You, your spouse and your attorneys will go to the mediator's office and sit in separate rooms. The mediator essentially acts as a ping pong ball- bouncing back and forth in between your room and that of your spouse in an attempt to help you settle your case.
Judges are big fans of mediation. Number one, mediation encourages you and your spouse to work together to resolve the issues of your case. Number two, you all are able to reach a better outcome, more suited to your family than a judge is likely to be able to provide you with. The reason for this is simple: the judge will never know you or your spouse better than you know one another. It makes sense, then, that your knowledge can be applied to arrive at a favorable outcome for both parties.
The other benefit of mediation is that a mediated order tends to hold up a lot better over time. Since you all created the order it is likely that you agree with its contents and are more likely to follow it in the future. If you go to trial it is possible that you could end up with an order that does not suit you or your spouse well. If circumstances change in the future there may be little choice than to violate the order and end up back in court.
How could your mediation be structured?
As I mentioned a moment ago, the most common way that mediation is structured is to meet up at the mediator’s office with you in one room and your spouse in another. The mediator goes back and forth between your rooms in hopes of spurring each of you towards a settlement. It is likely that you and your spouse will not even see one another while at the mediation session.
Family members and friends are not typically allowed at mediation. Seeing your spouse’s new love interest or her mother in law that you are none too fond of can be something that causes you to become disinterested in working out a settlement. Mediation is a good time for you and your lawyer to work together to figure out common sense solutions to the problems in your case. If you rely upon a family member to influence you during negotiations it can sidetrack you and your attorney a great deal.
Mediation is structured to remove much of the animosity and stress that is brought about by contested hearings and trials. Having to be in the same room as the person you are divorcing can distract you from the business at hand and can leave you more focused on your anger or frustration with the other person. The ability to have open and honest conversations with your attorney about your case and its circumstances can be incredibly beneficial.
Mediation is not something where your attorney will take the lead in addressing the issues. You will be addressed directly by the mediator and your attorney will likely be offering advice and perspective when called upon. For most people, a divorce is not an overly complicated matter. You are simply trying to figure out what possession schedule works best for your child or how to divide up the equity in a house that will be sold. As a result, you are fully qualified in most situations to offer your opinions on any subject relevant to your case without relying upon your attorney.
Finally, the mediator will likely require you to tell him or her information about the hearing that your spouse is either not aware of or is not fully aware of. If you give your mediator permission to share that information with him or her. Once information starts to be exchanged freely without the hindrance of a judge around you will likely find that settling your case just got a lot easier.
While you are working with the mediator to help you settle your family law case, your attorney and the mediator will be playing devil's advocate with you on any scenario that you are negotiating with your spouse. That means that whatever position you take if there is any doubt that it is the right one for you, your attorney and the mediator will present you with an alternate reality where undesirable outcomes can result based on your decisions.
The mediator is also a licensed family law attorney and has likely spent time arguing cases in front of the judge that your case is assigned to. That means that he or she has a pretty decent idea about how the judge will rule on a particular subject. As such, you should take seriously what the mediator has to say. It is likely that he or she is basing their positions as a mediator on how the judge is likely to rule once your case gets into their courtroom.
Work with one another and you can be successful
Whenever I get on the subject of mediation, invariably one person or another has to tell me that their spouse is the most stubborn person in the world and that a successful settlement just will not be possible as a result. Their entire marriage was spent arguing and fighting over little issues, so what hope do they have to settle important big-picture issues? I can tell you that something happens to a person once they get to mediation. Most of the time that means your spouse will be more willing to compromise and meet halfway on the issues which are related to your divorce.
You will likely have to concede ground on certain issues in order to gain ground in others. If you are a father who wants to spend as much time with your child as possible, you may offer more in child support in order to get that done.
Receiving an initial offer in a family law mediation
Most of the time you will not submit, nor will your spouse, the offer right off the bat that you expect to be accepted. Low ball offers are commonplace at the outset of mediation and then tend to get more reasonable as time passes. You cannot, however, use that low-ball offer to taint all of their remaining settlement offers that are made to you. Keep in mind that as you proceed forward both you and your spouse will become more willing to concede points to the other as time goes on.
What happens in mediation stays in mediation
Settlement negotiations that take place in a mediation session are kept confidential unless otherwise indicated to the mediator by your or your spouse. Expect that your spouse will not be offering you the generous settlement offers in the trial that was made in the prior week. You cannot use a mediation settlement offer against your opposing party in order to force her to increase what she is offering you. Likewise, if you are the party who made the extremely reasonable settlement offer in mediation, you are not expected to pick up where you left off in mediation as far as that settlement offer is concerned.
There's (basically) no going back once you settle your case in mediation
Mediated Settlement Agreements (MSA) are irrevocable. You and your spouse will have been working together for hours on end to settle your case in mediation. It would be a bitter pill to swallow for one of you to be able to call your attorney the morning after mediation ends and simply state that you are no longer interested in the settlement agreement.
An MSA is a document that your final orders will be drafted off of. You and your spouse are expected to follow the contents of the order until a later court modifies that order. With that said, how can you be sure that you have an agreement in place that is worth accepting in order to end the divorce? The bottom line is that you have to be able to live with for the near future. It is very unlikely that you will get everything that you want out of your divorce settlement. However, keep in mind that the same can be said for your spouse, as well.
I advise clients to break down your list of goals into needs and wants. We have a few things that you cannot bend on and will have to be negotiated on pretty stringently. Then you have a longer list of things that you care about but are not willing to have them push your case into a trial or contested hearing. Being able to work with your spouse to settle your case is a great way to eliminate a needlessly long divorce case and the stresses that are associated with it.
Do not judge a book by its cover when it comes to Mediated Settlement Agreements
A lot of times what you see in a Mediated Settlement Agreement can fool you if you are unaware of the other circumstances in your case. Looking at an agreement and deciding that a person could have done better is not fair since there is a lot of circumstances that are in play for every divorce that could lead you to believe that a different outcome was possible.
Keep in mind that meditation allows you to keep your private affairs private. A trial will cause you to put your dirty laundry out on the line for everyone to see. There is a value to this that cannot be put into terms of pure dollars and cents. Additionally, while there is a fee that is charged by the mediator to attend mediation, it pales in comparison to what it will cost you to pay your attorney to go to a trial.
As long as the judge generally believes that the mediated settlement agreement and the orders drafted off that agreement are in the best interest of the children then the judge is likely to approve the orders that were drafted. This allows you and your spouse to put your fingerprints all over your case and personalize it to the greatest extent possible.
Divorce and child custody trials- tomorrow’s subject matter
If you are unable to settle your family law case then the last step in a case is to attend a trial. Tomorrow’s blog post will detail the preparation for a trial and will cover what to expect in the trial itself.
In the meantime, if you have any questions about family law cases, in general, please contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where your questions can be answered in a comfortable and pressure-free environment. We take a great deal of pride in being able to help people just like you who live and work in our community.
Our attorneys are experienced in handling cases in all family courts across southeast Texas. We will address your concerns head-on and talk to you about how we can best help you and your family. We understand how difficult family law cases can be and are here to assist you and advocate on your behalf. Thank you for your time and consideration.