WHY DO THE TEXAS FAMILY COURTS PREFER MEDIATION?
Texas family law has a strong preference for ending a divorce via settlement over taking a divorce to trial, especially as a means to solve child custody, visitation, and divorce disputes whenever possible. There are several forms of alternative dispute resolution and mediation is one of them. In fact, mediation is one of the more often used methods of dispute resolution in divorce.
Most courts’ dockets are packed full of cases. Depending on the statistic you’re looking at, mediation successfully settles some or all of the pending issues in more than eighty percent of cases. It should probably not come as a surprise that Courts most often order parties to mediate their cases before trial. What easier way to lighten eighty percent of the burden on the Court’s time and resources.
The Texas Mediation Process Explained
In family law, mediation is usually less formal than going to trial (litigation), though the formality is decided by the parties before beginning the process and may follow certain guidelines if the parties choose to do so. Mediation is the preferred way to settle divorce, custody, or other family law issues because it takes less of the Court’s recesses. The process typically involves the following scenarios.
- One party and their attorney are in one room;
- The opposing party and their attorney are in another room;
- Most of the time, the parties will not see each other during the mediation;
- A mediator (a neutral person trained in mediation and preferably a skilled attorney hired for the purpose of conducting the mediation) goes back and forth between the rooms and tries to negotiate enough common ground to settle the case;
- If the case is settled, a Mediated Settlement Agreement, which is a shorthand rendition of the parties’ agreement, is prepared;
- A Final Order is prepared at a later date to include the required legal language and the specifics of the agreement, if appropriate.
Once signed, both sides are entitled to a Judgment on Mediated Settlement Agreement. That means if someone signs an MSA, he or she should not plan on getting out of the deal later.
There are 4 possible outcomes of a mediation:
- Settlement of all of the issues,
- settlement of some of the issues (leaving some to be tried to the Court),
- recess (meaning you come back to continue mediating another time),
- or impasse.
Most cases settle before they are tried, whether through alternative dispute resolution, mediation, or otherwise, and, generally, Judges will require mediation before trial.
The Advantages of Divorce Mediation
- Mediation is cost effective; it is significantly cheaper than a trial or a series of court-mandated hearings;
- Mediation gives you privacy, as everything is confidential and there is no public record;
- Mediation can give you more flexibility to decide your issues on terms that are important to you, and abstract and rigid legal principle are less important;
- You and your spouse have greater control; and
- You can have your attorney assist you by either being present at a mediation when appropriate or by having your attorney comprehensively analyze the results of the mediation.
Here are the important factors to know about mediation – things I’m most often asked.
Who chooses the divorce mediator?
The mediator is usually chosen by the attorneys and if no agreement on the mediator can be reached, the Court will appoint someone for the job. .
Who pays for the mediator’s services?
Most of the time, each side pays half of the mediator’s fee. Every mediator is different, but most of them charge a flat fee for the mediation up to a certain time, then they charge by the hour after that. For instance, the mediator might cost each side $1,000.00 for the day until 5:00 pm and then $200.00 per side for each hour after that.
How long does mediation take?
Most mediations are done in a day, but it is not uncommon for a mediation to be scheduled over 2 or more days, depending on the complexity or, perhaps, the number of issues to be negotiated.
The mediation process is confidential. That means anything that happens in mediation, with the exception of the revelation of child abuse or the intent to commit a crime, does not leave the mediation. The mediator cannot be subpoenaed to testify and their notes, if any exist, can’t be used by either party. Also, what is offered or discussed in mediation can’t be repeated in Court by either side.
In most circumstances, the litigants will never see each other on the day of mediation. They will stay in separate rooms with their attorneys and the mediator will go back and forth between them, trying to bridge the gap of their respective positions. That will give you and your attorney plenty of time to talk about the last offer that was brought in and how you might react to the next one.
Keep in mind that the mediator is a neutral. He or she does not have an interest in the outcome of your case. Their interest is to get it settled. It’s your attorney’s job to make sure that settlement is a good one. Every honest attorney wants to settle his case for his client. It helps bring the litigation to a close quicker and less expensively than a trial, but there are limits. That settlement should be at least fair or, even better, to your advantage. It takes two sides to settle a suit and if the other side refuses to be reasonable, the mediation can and often should fail. Part of negotiation is always a willingness to walk away from the settlement table and go to trial, so make sure you have confidence in your attorney’s trial skills. Family law litigation is hard enough without having to worry about whether your attorney can do the job.
Mediation & Dispute Resolution Lawyers
Contact our mediation and dispute resolution attorneys today to see if you qualify for this alternative to a traditional divorce. It could end up saving you a lot of time and money if both parties are up for it.