Before turning to a court to litigate legal issues people will attempt to use an alternative dispute resolution, which just means they will try to resolve their disputes outside of court. There are many pros to using an alternative dispute resolution but knowing which alternative to use is important to know as well.
These alternatives are not required if parties agree, but most courts in Harris County and Montgomery County will require these alternatives before a hearing can be requested on Temporary Orders or before a final trial.
Mediation vs. Arbitration
Often people will use the terms “mediation” and “arbitration” interchangeably but there are significant differences in the processes. In the end, both are alternatives to having a hearing on issues with a Judge and attempt to help you reach a resolution on the issues you are attempting to resolve.
To begin mediation is more of a negotiation process in comparison to arbitration, and this process can typically be non-binding unless the parties agree to otherwise. Non-binding means that it has little legal or binding force and that the parties legally are not obligated to follow the terms of the agreement that results from a mediation.
On the other hand, arbitration is another form of an alternative dispute resolution where typically one or more arbitrators will render a decision after they have heard arguments and received evidence from both parties. It differs from mediation in that the arbitrators make the final decision versus a mediation where the parties make the final decisions.
This process is like how a trial is run, and decisions can be binding on the parties who will legally have to follow the terms of the agreement. However, these agreements can also be non-binding if the parties agree that it will not be. This blog will not focus on the specifics of arbitration which will be discussed in a subsequent blog instead.
Who Can Mediate?
Mediations are conducted by mediators, which are third parties attempting to help the parties of the conflict reach an agreement. To be a mediator you do not need any type of professional license, but most attorneys will only want to use a mediator who has experience in the field of law they are attempting to mediate. Mediators are typically former Judges or attorneys.
How is a Mediator Chosen?
Choosing a mediator is collaborative process the parties use. Both parties can make suggestions about mediators they would like to use until a common ground is found. The purpose of this is to help find a mediator who will remain impartial in the negotiation process. It is often that a party will request a mediator their attorney is familiar or close with, but the goal is to have a mediator who will remain fair and just in the process.
Mediations are often had at either counsel’s office or the mediator’s office. Each party and their respective counsel will be in separate rooms to allow them to discuss in private. The mediator will go back and forth offering suggesting and helping apply the law to the proposals the parties have. At the end, the mediator will draft what is known as the Mediated Settlement Agreement where the parties and their counsel will sign. This mediated settlement agreement is then filed with the court.
How a Mediation Can Help
Mediations have been proven to be more cost efficient rather than having to pay to have Judge decide matters on Temporary Orders or for a final trial. Overall, people attempt to avoid litigation through the courts all together because of the expenses, how time consuming it could be, and how stressful and unpredictable a Judge can be.
Mediation Can Save Your Pockets
A final trial on the merits can cost upwards to ten-thousand dollars, money most people would rather save by paying for a mediation. The comparison in costs alone is enough to push for having a mediation.
Mediation Gives You Privacy
You can also expect the effects of having any hearing or trial to further strain the relationship of the parties where they will be questioned openly in front of the court room. Often, the parties will say embarrassing and hurtful things about the other party to give them leverage in their argument. In a mediation you are not in front of a courtroom, but instead in a separate room with counsel only and will have more privacy.
Mediation is Flexible to Your Schedule
Courts are time consuming because they are always overscheduled and sometimes will not be able to have your hearing for months out. These dates are often given to you with little to no say, and you will be required to show up on those dates at specified time. Mediation is easily accessible because there are more mediators than Judges and there is much more schedule flexibility which can help speed up the process. You will get to choose what day and time you are able to mediate.
Mediation is Less Stressful
The negotiation process itself is less stressful because you will get to go back and forth and propose solutions and counter proposals versus having a Judge make the final decisions with no negotiation. Since you cannot choose what Judge is litigating your case, the unpredictability of how that Judge will rule is another reason people will choose to stay out of litigation.
Cost of Mediation
In terms of cost, mediation prices can range greatly. To begin if you are a person who is in financial need you may be eligible to have the cost of your mediation covered. For example, if you are resident of Harris County you can apply for a free mediation with the Dispute Resolution Center where you will have to provide proof of your financial need. These are not always completely covered but they may be significantly reduced.
On the other hand, if you are not financially in need mediation costs will need to be covered by the parties of the litigation. Mediators typically work in half-days and full-days and their prices can vary anywhere from $200-$1000. More distinguished mediators will typically be more expensive. However, you can always request that the other party offset your costs by covering them either partially or in full.
Do I Really Have to go to Mediation?
People question if the requirement of having to go to mediation pertains to them, and most often yes, it is required, but in certain instances can be gotten around. However, there will need to be a motion filed and a hearing held on why a mediation is not needed. This again will take time and money to get into the court to have a hearing on the issue of why you should not be required to go to court. An excuse is only given in the slimmest circumstances.
Overall, a mediation can be very helpful for your family law case. If you still have questions regarding mediation and the process, we have family law experts here to discuss the process and help you with your family law case. Please give us a call at the Law Office of Bryan Fagan to set up your free 30-minute consultation with an attorney.