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Why doesn’t mediation always work?

If you are in the process of becoming involved in a divorce case then you should know right off the bat that there are no sure things in the entire process of getting a divorce. While you may be looking for assurances to the contrary at this time I can tell you that there is nothing guaranteed within the context of a divorce. While you are likely to run into several issues regarding your divorce there is nothing guaranteed as far as your case is concerned. Almost everything that we write about here on our blog in the context of a divorce is written from the perspective of things that are likely to happen or that commonly occur. 

Your case, however, is unique and you cannot always bank on events happening regardless of what other people tell you. From the beginning of your case, you will likely be seeking out the advice and counsel of people that you trust. Those people will tell you things based on their circumstances but will not be able to give you precise advice because their circumstances differ from yours. Even if you think their life looks similar to yours or even if they are your next-door neighbor there are no two divorces that are exactly alike. Your job is to get advice about your case from people who are knowledgeable about the process and can provide you with pinpoint advice about your case. 

This is why having an experienced family law attorney to represent you in your divorce is so important. Even the most well-meaning friend or neighbor will not be able to give you the experienced perspective and advice of an attorney. I like to tell people that they should think about attorneys as a short-term investment into your long-term future. Well hiring an attorney will cost you money I can almost guarantee you that there are very few people out there who can remember exactly what their attorney costs once their divorce is done. On the contrary, I can promise you that almost every person involved in a divorce can tell you the outcome of their case, how they felt at the end of the case and whether or not they got a fair deal. 

With that said, there is a certain degree of risk involved in getting a divorce. This is over and above the risk inherent in getting a divorce when it comes to issues like your relationships, your family, and your outlook in a post-divorce world. Those are all factors that you need to be concerned about and you should be taking time to work on them. However, the bottom line is that you also need to be concerned with the risks that you take on from a financial and relational standpoint. Despite the methods available to mitigate those risks, you need to be aware of the burdens that a divorce can place on you as far as a risk in uncertainty is concerned. 

However, if we have learned anything in the past year it is that understanding and assessing risk is all a part of the human experience. It is impossible to put yourself in a zero-risk environment and it is certainly possible that by attempting to do so you are limiting yourself and your ability to lead your best life. That doesn't mean that you should be cavalier worth your health or with your relationships but it does mean that to live a self-actualized and content existence that you will likely need to take risks at some point. The risk you take should be measured against their reward as well as your ability to benefit the lives of those around you, as well. 

In the world of divorce, I can think of no better risk-mitigating tool than mediation. We here at the Law Office of Bryan Fagan discuss mediation with great frequency and find it to be one of the commas if not the most, important tool in the attorney's toolkit as far as working to settle divorce cases and allow people to move on 2 new roles in their life after a divorce. I would like to spend some time discussing what mediation is as well as how it can benefit your family. Finally, I would like to discuss with you my thoughts on why mediation does not always work and what you can do to avoid putting yourself in a situation where attempts at mediation may not be successful. 

What is mediation? 

As with most things in the world of divorce mediation is not a complex topic to discuss but that doesn't mean it's simple. This may seem like a weird thing to say but allow me an opportunity to talk to you about why it is I believe this to be the case. Mediation is a process whereby you and your attorney, your spouse, and their attorney, and an experienced mediator worked together to settle the outstanding issues in your case. You and your spouse will select a mediator who is agreeable to all the parties involved and will sit down, either virtually or in-person, with the mediator to attempt to work out a settlement in your case. 

That doesn't mean that mediation is the first or even the last opportunity you and your spouse will have to attempt to settle your case together. On the contrary, the vast majority of time spent in your divorce should be on working through settlement offers and counteroffers. Unfortunately, many people involved in divorce cases end up spending most of their time arguing over relatively unimportant matters that will not affect you or your family for all that long. A much more useful mode of operation would be to use that time wisely to avoid a longer and more expensive divorce. 

While we're on this subject I will point out to you that for as long as your divorce takes there will be many more days spent with nothing on your calendar other than opportunities to speak with your Co-parent or opposing party to settle your divorce. I think many people assume that a divorce is in every day of the week type case where there is always something going on. However, this could not be further from the case. You may have 10 to 14 days during the entirety of your case where there is a court hearing, mediation date, or another deadline to attend to. The rest of the case will be spent with you and your spouse either sitting idly, arguing, or using your time productively, how you use the time is up to you. 

I recommend to folks that you use your time as wisely as possible to see what you can accomplish on your own in informal settlement negotiation even before mediation becomes a possibility. Simply learning how the negotiation will work with your spouse, what their positions are and what is important to them will help inform you to a great extent for the later stages of your case. Choosing not to take advantage of this time is a mistake because you will go into mediation without ever having seriously engaged in settlement negotiations with him or her. 

If you have your mediation session in person the session will likely be held at the office of your mediator. The mediator will likely be an experienced family law attorney him or herself. This will prove to be an invaluable trade for your mediator to possess in that he or she will be able to not only provide you with context while you are making settlement offers booking provides you with their assessment of what the mediator believes is likely to happen were you to present your arguments in a courtroom. Having that person available to play devil's advocate can be very impactful because to this point you have all only had your attorney help guide you when it comes to making arguments and holding certain positions. The arguments that you plan on presenting may not be as strong as you or your attorney may think in that should help guide the way that you negotiate within mediation. 

When you attend mediation you and your attorney will be in one room at the office while your spouse and their attorney will be in another room. The mediator will act as a go-between and Courier of sorts, relaying messages back and forth to one another. A mediator does not take sides in mediation but is there, to tell the truth as far as what they believe are likely outcomes in court and who possesses better arguments to present. If you and your attorney can honestly consider the input of a mediator then it is more likely that you all will be able to avoid the courtroom. 

Every topic in your divorce that has not been settled needs to be discussed in mediation. This will be your best and possibly last chance to negotiate with your spouse before a trial or temporary orders hearing. When you work on issues in mediation that means you have one fewer issue to go to court on. For many people, the ability to avoid having to go to court for a divorce trial is worth every penny that you pay to go to mediation. 

After your mediation session, the mediator will type out a mediated settlement agreement that contains every aspect of the case as far as settlements are concerned. Whether it is something regarding child custody, child support, possession of the children, division of your community estate, or spousal support then it will be covered in the mediated settlement agreement if a settlement is reached. Whatever topics are not covered in that settlement agreement will be the topics that you and your spouse will likely have to hold a trial or temporary orders hearing regarding. 

Avoid the risks, time commitment, and costs of going to court by attending mediation 

As I alluded to at the beginning of today's blog posts certain risks are a part of the divorce process. Foremost among them are the risks that you take on by going to a trial or temporary orders hearing. I think the most significant risk you take on in the entire process is leaving your case up to a family court judge who does not know you or your spouse or your family on a personal level. That judge will be tasked with deciding regarding your case based on the evidence submitted throughout a one or two-day trial. 

If you feel comfortable with leaving a judge in the position to make life-changing decisions for your family in these types of circumstances that I think you would count yourself among the minority of people in our community. However, if you are like most of us you should be a little concerned and wary about the possibility of leaving it to a judge to make a decision in your divorce on important issues that will affect your family for many years. There is one other person involved in your divorce who is in the same boat as you as far as being in a position to settle your case. Unfortunately, that other person is your spouse and you may not be on the best of terms with him or her at this moment. 

Simply put, going to mediation allows you and your spouse to shoulder the burdens of determining the outcome of your case. Nobody knows your circumstances better than you and your spouse. While it may not be the easiest thing in the world to settle your case with him or her at this moment I can think of very few divorces where two people were not able to put aside their differences to make decisions that were beneficial for themselves and their families. It would take an extreme case for yours to be one where a judge is better suited to decide that one packed your life better than you or your spouse. 

Why doesn't mediation always work? 

Mediation works close to 90% of the time in Texas divorces. This is not an official statistic and I don't believe that there are official statistics kept on this subject anywhere. It is just my anecdotal experience at the vast majority of divorce cases settle in mediation rather than require a prolonged and divisive trial. However, that does not mean that mediation works for every party. While you should not expect to need to go to a trial in your divorce you should at least prepare for that outcome as a possibility. 

For instance, you and your spouse's man end up taking positions within the case where a settlement just isn't possible. For example, if both you and your spouse want to be the primary Conservatory of your children after divorce then there is no middle ground where you all can work on a settlement. You may be able to settle every other issue, but when it comes to determining where your child will live on a full-time basis after your divorce that may be one where a trial is necessary. On any subject in your divorce where you 2 hold polar opposite views and cannot be swayed from feeling that way then a trial becomes much more likely as a result. 

Another reason why mediation doesn't always work is that sometimes one or both parties come to mediation unprepared or underprepared. The attorneys with the Law Office of Bryan Fagan like to work with our clients days in advance of mediation to make sure that we have documents, settlement offers, settlement counter offers and financial statements ready to go with copies for both the mediator and opposing party. It is not uncommon, however, to see an opposing party not nearly as prepared and that can be to everyone's detriment. 

Even if you are motivated to settle your case and are prepared to offer compelling arguments as to why a settlement should be reached that does not mean you should do so if you are not able to negotiate in good faith with your opposing party. He or she may not have come into mediation prepared to consider your settlement offers or to make valid counteroffers. Pushing for a settlement just to avoid going to court or to avoid delaying your case any further is also a mistake. While it is a shame that your opposing party may come into mediation notice prepared as you that does not mean that you should accept a settlement offer based on their terms when you know that the information you are operating from is more accurate or better thought out. 

Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan 

If you have any questions about the material presented in today's blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family may be impacted by the filing of a divorce or child custody case. 

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