In the world of family law, one of the terms that you need to become familiar with is mediation. In some ways, all family law cases are based around attending at least one session of mediation, while many people assume that family law cases will inevitably end up in court; the vast majority of divorce and child custody matters are settled in MMediationbefore a trial is necessary. Given the importance of mediation and its critical role in your family law case, I think it is essential for us to cover the basics of mediation and what to expect when and if you attend creation in your case.
What is mediation
Mediation is a process whereby you and your attorney and your spouse and their attorney attend a formal negotiation session with a neutral, third-party lawyer. That third-party attorney will attempt to help you and your spouse mediate any outstanding issues in your case. Mediation can occur at the beginning of a divorce case and will likely happen at the end. The subject matter covered in each mediation session can be different, but what is achieved in Earlier mediation will impact the ultimate settlements in final orders mediation.
Mediation is a tried and true alternative dispute resolution method employed by civil attorneys of all kinds. If you have ever been involved in a personal injury case, contract dispute, or any other civil legal matter, you may have been involved in mediation as well. While the stakes are high in mediation, there is not a level of pressure that parties typically feel when they go to court. Mediation is essential but not pressure-packed because you are not sitting before a judge and are not in an uncomfortable environment like a family courtroom.
I find it helpful in mediation because it allows you, as the client, to see how an attorney processes information in a family law case. I think this is important because as you sit with your attorney and another attorney helping you mediate your case, you can begin to see what an attorney looks for in settlement negotiations. What you believed to be reasonable in the context of a claim may end up not being suitable to expect at all, given your specific circumstances.
What are the two different types of mediation within a Texas divorce case?
As I mentioned a moment ago, there are two phases of a divorce case in Texas. The first phase is what I like to call the temporary orders phase; this phase covers most of your divorce until you are ready for your case to be done with. Temporary orders are the marching orders for you and your family during your divorce. Temporary orders will govern a temporary structure for You and your family as far as Visitation with your children, child support, quick spousal support in a division of which parents will pay which bills during the divorce.
Temporary Orders mediation
In a family law case, temporary orders help a family adjust to living separately from one another. People generally underestimate the transition that comes with living in separate households, and for that reason, temporary orders may be overlooked in importance. However, I would caution you on this ahead of time. For one, a transition comes with living in separate households and having to maintain those two households while adjusting to a shared visitation schedule with the kids.
Temporary orders are also crucial because what ends up happening in many divorce cases is what you have negotiated upon for temporary orders tends to show up for final orders. Here is an example of what I'm talking about. Suppose you are named the parent who has the right to determine the primary residence of your children and temporary orders. In that case, that means you have an excellent opportunity to be awarded that write in final rulings. This is because judges are reticent to change things up at the end of the case if they have been going OK for the majority of your divorce.
This should tell you that it is essential to prepare and negotiate well for temporary orders because it is sometimes difficult to change those orders in significant ways towards the end of your divorce. Do not assume that you will be able to negotiate harder in the final orders phase than in the temporary ones. Even the division of your household bills during the divorce case can impact how property is divided in the final orders phase of your divorce. Take nothing for granted and prepare well for temporary orders negotiations—more on that in a bit.
Final orders mediation
Final orders mediation is the 2nd of the two sessions, typical in a Texas divorce. Last orders mediation looks and feels like temporary orders mediation, but the subject matter you will discuss is different in one primary regard. That significant difference between temporary orders mediation and final orders mediation is that your marital estate will be divided between you and your spouse in the last orders mediation. This means that you and your attorney must have a plan for how you want to divide your community estate. We will discuss in a moment how to prepare for final orders mediation.
Otherwise, final orders mediation covers much of the same material as temporary orders mediation regarding child custody and conservatorships. You and your spouse used the divorce case as a testing ground to see how well you negotiated for orders that worked during the case. If they have worked well, you all may want to extend those temporary orders and make the final. However, if circumstances have changed or viewpoints on particular issues have changed, you can change how you negotiate. If you cannot make the changes to your temporary orders that you want for final orders purposes, your option would be to go to trial and see what a judge has to say on that issue.
Preparing for mediation and how to learn from this process
As I've said before on this blog, information is power. Knowledge is power. Taking that information in knowledge and translating it into positive results for you and your family is indeed even more powerful. With that said, I talked to clients about looking at mediation as the ultimate time for you to gain knowledge and information about the divorce process in your case specifically. You can watch YouTube videos, speak to your attorney and talk to other people in your community about divorce. However, mediation is a real-world learning session for you to engage in fully.
In this way, mediation can kind of act like an informal law school course on dispute resolution in the world of Texas family law. For mediation to be especially helpful to you and your spouse, it is necessary to understand and prepare for mediation. That is what I would like to discuss with you next. How best can you and your attorney prepare for mediation if you are at the temporary order space of your case or a final orders phase.
Let's go in order and talk about temporary orders mediation first. Preparing for temporary orders mediation Can seem like trying to drink water from a Firehouse. Many times, mediation can be scheduled not long after you file for divorce. This means that there can be precious little time to get ready for an important day like this. I would begin to prepare for mediation for temporary orders before your divorce is even filed. You can start by planning out what you envisioned as a reasonable Visitation schedule for you and your spouse to share with your children. Consider your jobs, programs, preexisting parenting schedule with the kids, and any other factors that are relevant to your circumstances.
Next, I would take a long natural look at your bills and figure out what your living circumstances are going to be with your spouse for the next few months. If one of you has moved out of the family home, then this situation May have already been answered for you. However, if you are still living in the same home, you need to decide which one will move out of the house if either of you will be doing that, and then how household bills should be split during the divorce.
If you have not been working in recent years due to your being a stay-at-home parent or spouse, you may need to request temporary spousal support during the divorce to make ends meet while attempting to reenter the workforce. Keep in mind, however, that your spouse is not able to always pays temporary spousal support. They need to have excess income to do so. Both you and your spouse will be required to submit budgets to one another showing your income and the bills you are required to pay.
Much of the work will have been done for you for final orders mediation about child custody and conservatorships issues. You and your attorney should review how custody issues have gone this far in your divorce and whether or not you need to make any changes regarding custody or conservatorships for final orders. Do not leave mediation unless you have addressed all the issues you have on either of these subjects. Something that is not working out well should not be continued unless you have peace about the situation.
Much of the time, your focus on final orders mediation will divide up your community estate. To do that, you need to determine what property belongs in the community estate and its value and how you see that property being divided in the divorce. I'm not only talking about the property contained within your family home but retirement accounts, other investments, vehicles, and even your family home. You and your attorney must have specific information on the values of retirement accounts and your house and any info on bills/debts relevant to you all.
A summary on mediation Texas family law cases
to sum it all up, parents try mediation before going to court because mediation works. I don't have a specific statistic to share with you right now. Still, I would estimate that upwards of 90% of Texas divorce and child custody cases settle in mediation before going to court becomes an option the parties need to pursue. With this degree of success, it is no wonder that most family courts require at least one mediation session before a trial is had. My recommendation is to prepare, prepare and then prepare some more with your attorney. While it is not easy to predict precisely how mediation will go, I can tell you that if you fail to prepare, the outcome of mediation will likely not be in your favor. Take this opportunity to negotiate and settle your case seriously, and you and your family will benefit.
Questions about Texas family law? Contact the Law Office of Bryan Fagan
if you have any questions about the material presented to you today in our blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, via video, and over the phone. These consultations are an excellent opportunity to learn more about Texas family law and how the law impacts you and your family, given your current circumstances.