If you’re involved in a divorce or child custody dispute, where you and the other party can’t agree on terms, there are generally two ways to resolve your case. You can either go to trial or try to resolve your issues through the mediation process. What is mediation, and what does a mediator do? I’ll answer these questions and more in the article below.
What is mediation in law?
Legal mediation is an option in many areas of the legal system, including family law. In general, the way we define mediation is similar across legal specialties. I like the way the Supreme Court of Texas (SCOT) defines mediation in its Ethical Guidelines for Mediators because it’s pretty straightforward. The mediation definition according to SCOT reads as follows:
“Mediation is a private process in which an impartial person, a mediator, encourages and facilitates communications between parties to a conflict and strives to promote reconciliation, settlement, or understanding. A mediator should not render a decision on the issues in dispute. The primary responsibility for the resolution of a dispute rests with the parties.”
What is a mediator, and what does a mediator do?
If you’re considering mediation, I encourage you to read SCOT’s mediation definition again and read it closely. It’s important to understand the fact that the private process known as mediation is facilitated by an impartial person, the mediator. You shouldn’t expect to get any legal advice from a mediator during mediation because they are required to remain impartial.
As SCOT so aptly explains, “A mediator’s obligation is to assist the parties in reaching a voluntary settlement. The mediator should not coerce a party in anyway. A mediator may make suggestions, but all settlement decisions are to be made voluntarily by the parties themselves.”
The reason I point this out is to encourage people to seek legal advice prior to entering family law mediation. In fact, unless you and the other party agree on all issues pertaining to your case and you have few to no assets and no kids, entering legal mediation without legal representation could put your desire for a fair divorce and/or child custody settlement at risk.
What is the goal of mediation in a court?
The goal of mediation should be to try to foster an agreement that both parties have input on, which creates some degree of a favorable outcome for each party. The problem with mediation in many people’s minds is that mediation will force them to bend a little bit (or a lot).
While it may be true that most people don’t get 100 percent of what they want in mediation, they usually don’t get that in a courtroom either. So, I believe the goal with mediation should be to try to foster at least a degree of semblance, where the two parties can peacefully coexist in the same room after everything is said and done. In my experience, it usually takes a lot longer to heal from a divorce or custody dispute, when it’s battled out in the courtroom. Most judges not only encourage mediation but require it before taking a case to a final trial.
There are other benefits to mediation in family law
Keeping personal matters private is a big one, as anything discussed during mediation is generally kept under wraps. Conversely, if you go to court, any dirty laundry aired is likely to become part of the public record, unless a party’s attorney can show good reason for the records to remain sealed.
Mediation is also the one place you can control the narrative and the outcome in a legal environment. It provides many opportunities to “think outside of the box” when negotiating a settlement. For example, you have more flexibility to get outside of the box when it comes to the typical standard possession or 50-50 custody schedules.
You can also negotiate for a party to receive contractual alimony, which isn’t recognized in the Texas Family Code. Texas is not an alimony state, and the spousal maintenance the Texas Family Code Chapter 8 does allow is very limited in terms of monetary amounts and duration.
Mediation offers two other key benefits: the potential to save time and money. It can take a long time to get on the docket of the Texas family courts, so if you want to expedite the legal process, mediation tends to be a faster option than going to trial. As noted above judges strongly encourage mediation. In fact, the parties’ pretrial scheduling order (wherein their trial date is scheduled and noted) will also include a deadline to mediate the case.
Preparing for and going to trial also tends to take a lot longer than going through mediation. And the more time the attorneys, paralegals and legal support team spend on a case, the more costly it will be for the client. Not only does it take longer to resolve a case, litigation is a much more expensive way to go than mediation in most cases.
What are the downsides to mediation?
Some clients come out of mediation, and no matter how good a deal they end up getting, they don’t feel like enough was done on their case. Why? Because they didn’t get their day in court. And that’s a big misconception. In truth, we tend to find more flexibility and creative ways to resolve cases in mediation (the “outside of the box” strategy mentioned above), and that often means finding resolutions that are more financially beneficial to clients.
However, I can tell you that many clients do appear to feel much more satisfied when they get out of trial. It’s very similar to a fist fight. You go into the fist fight, you’re mad, you’re full of frustration, and you have the opportunity to let everything out.
It’s during trial where we see many parties finally able to put out there what they really wanted to say. And even though the outcome of mediation may have been much more beneficial for them financially, the emotional element of being able to have their say in court and get their peace of mind holds a lot of sway with some people.
Going to trial—simply to get that emotional release—can be a costly endeavor. As difficult as it may sound, it’s generally best to stick to the facts and try to keep emotion out of divorce and custody negotiations. That’s something family court judges believe, too.
In most cases, it’s easier to do that in mediation than at trial. Seeking the guidance of a family therapist or counselor to learn how to deal with the emotional side of divorce can not only be more cost-effective from a budgetary perspective, it can also provide long-term benefits in terms of wellbeing for the parties involved.
What can I expect during the mediation process?
If you’re wondering what is mediation and what does a mediator do during mediation, you may also want to know how the legal mediation process works. Following is a general overview of the mediation process in family law cases.
STEP 1: DISCOVERY
Whether you go through mediation or end up in trial, much of the work the law firm does is handled behind the scenes. It all starts with discovery, where all information and paperwork (legal and financial documents, etc.) relevant to the case are gathered and shared between the two parties. Upon review of documentation and other evidence, the legal team can explain how they would approach the case, pertaining to the division of the marital estate, child custody issues and other concerns.
STEP 2: PINPOINT STRATEGY
If your family law case will be handled through mediation, the next step is to get a handle on the mediation strategy your attorney is proposing for you. If you’re fortunate to have a good lawyer who is skilled at the mediation process and organized, he or she will talk you through the different scenarios available to you before you get to the mediation. That’s really a critical part of the process because it helps clarify options and level set expectations.
STEP 3: ENGAGE A MEDIATOR
The next step is to find a mediator to handle your case, which is something your attorney would typically arrange. I can’t stress enough how important this step is in the process because there are some really good mediators out there and there are also some bad ones. Some mediators are also a better fit for cases involving complex property issues, while others may be terrific at handling bitter custody disputes. A good mediation attorney will know which mediator will be the best fit for your case.
STEP 4: SCHEDULE MEDIATION
Once the mediator is on board, and both parties must agree to this neutral party, it’s time to schedule mediation. In most cases I highly recommend scheduling a full day for mediation or two half days back-to-back because single half-day sessions typically don’t allow enough time to resolve all issues in family law cases.
STEP 5: MEDIATE
On the day of mediation, the session typically starts with both parties, their attorneys and the mediator in one room to review the schedule of items to discuss and what the process will look like. From there, the individual parties adjourn with their attorneys to separate rooms, and the mediator will go back and forth between the rooms during the mediation. What does a mediator do during the process?
The mediator’s role is to act as a catalyst between the two parties by helping them clarify issues, facilitate communication and relay expectations and/or concessions from one party to the other. Again, the mediator can’t push the parties in one direction or another, they can make suggestions but the parties (with the help of their attorneys) must voluntarily come to an agreement on their own.
STEP 6: FINALIZE MSA OR GO TO TRIAL
If the parties come to an agreement, a Mediated Settlement Agreement (MSA) will be drafted and signed by both parties on the day of mediation. After the MSA is signed, the petitioner’s attorney typically drafts the final order (whether it is a decree or otherwise), which will then need to be signed by a judge to finalize the case. MSAs are binding agreements, so it’s important to be satisfied with the terms prior to signing. There’s no going back. If the two parties can’t work through their differences in mediation, then the next step is to inform the court and schedule a trial date.
How to make the most out of legal mediation
If you’re involved in a divorce or another family law dispute and have questions about mediation law or wonder what is mediation going to do for me, we strongly encourage you to seek the guidance of a competent family law attorney who specializes in mediation. As discussed above, mediation offers many benefits but it isn’t the best option for every case.
A lawyer skilled in family law and divorce mediation Texas can review your case, explain your options and recommend a strategy to achieve the optimum outcome for your situation. If you live in the Dallas / Fort Worth area, the family law attorneys at the Sisemore Law Firm are here to help.
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