It is very common in the recent climate of overloaded litigation dockets that the Court requires parties to attend mediation prior to stepping foot in Court for trial. Thus, it's worth understanding how mediation works.
The Mediation Process in Family Law Cases
Prior to final mediation, typically the parties already have attorneys and the case is ongoing and discovery is completed. The parties are usually armed with the same information and documents as though they are ready to go to trial. However, instead of the attorneys standing in front of a judge and arguing their respective cases, with the judge determining the final outcome, the attorneys deal with a third party mediator who is typically an attorney trained in the same field of specialty. It is very common for both parties to agree to a mediator who is most suitable to the facts of the case, the personalities of the parties, and in divorce cases, the size of the marital estate. As such, your attorney would be the first person who can take the step to whether this case will settle in mediation or not by the act of proposing which mediators are trusted with the ability to tailor their negotiation skills to the parties at hand. . Additionally, the mediation process almost always begins with the parties and their attorneys split up in different rooms, so the mediator can hear their issues and concerns one at a time, rather than everything being said openly in court.
By far the most important difference between the role of a mediator and the role of a judge is that mediators facilitate a settlement so that trial is not necessary. The mediator's job is to lead a negotiation process and craft a settlement that both parties will voluntarily agree. A good mediator thinks outside of the box and can be creative in proposing resolutions and knows how to sell terms of settlement. A good mediator also finds flaws in one parties’ arguments and push the parties towards resolution they can live with. There are specials rules that usually apply to mediation. First, all information given to the mediator is confidential. Mediator will usually share information upon consent from the party. Second, nothing discussed during the mediation can be brought up at trial if mediation fails. All statements made are confidential, and if a trial does occur, the mediator cannot be brought in to testify on either side's behalf. Third, a mediated agreement is binding and irrevocable, and the circumstances under which a party can have a mediated agreement set aside are very few.
In general, the goal for mediation is to find an amicable solution to legal issues and to leave most of the decision making at the hands of the parties rather than a Judge or jury.
It is a good idea to go into mediation in good faith and with as much information as possible. Otherwise, it will fail and trial is inevitable.
Is Mediation Mandatory in Texas?
Mediation or alternative dispute resolution is mandatory in almost all courts.
Is Mediation the Right Option?
For most people, yes. Statistically, seventy to eighty percent of cases end in mediated settlements. It is very important to have legal representation who has experience navigating through the mediation process. A divorce attorney will advise you on specific aspects of the law and argue on your behalf during settlement negotiations and in court.
With decades of combined experience handling divorce and child custody cases, our legal team at Hendershot Cannon Martin & Hisey, P.C. has the insight and resources to protect your rights and interests during all matters of the divorce process.To learn more about how we can help you through the mediation, or other alternative divorce options such as collaborative law, uncontested and contested divorces – contact our Houston family law firm today by calling (713) 909-7323, or request a consultation online, 24/7.