THE BASICS ABOUT MEDIATION
The goal of mediation is to reach a settlement agreement without going to court. Mediation is a great alternative to having a judge or jury decide the outcome of a divorce or custody case. When mediation is successful, it avoids the stress and cost of going to court and allows the parties to have complete control over the outcome of their case. Our firm’s attorneys have extensive experience guiding our clients through the mediation process, and several of our attorneys serve as mediators for cases where the parties are represented by other family law firms.
Texas law encourages spouses going through a divorce to attend mediation and reach an agreement through this process. In fact, if a divorce or custody case is proceeding to trial, most judges require the parties to attend mediation first.
Unlike going to court, the mediation process is client-driven and client-controlled. Attorneys are present to guide and give information, but the client makes the decisions. Because the mediation process is confidential, the parties are encouraged to discuss their fears, hopes and willingness to compromise. No offer made during mediation or facts revealed to the mediator can be disclosed at a later trial if the parties are unable to reach an agreement at mediation. This allows the parties to show willingness to compromise on important issues, without fear that their willingness to accept less than what they seek in court will be used against them.
If the parties reach an agreement, they will sign a written mediated settlement agreement. Texas law makes this agreement binding on the parties. A mediated settlement agreement can resolve all or some of the issues in a case. This written agreement will serve as the outline for the final judgment that the judge will ultimately sign.
THE MEDIATOR
The mediator is a neutral third party who is either selected by the attorneys or appointed by the court. Typically, the mediator is an attorney who is familiar with family law and who has special training in mediation techniques. The mediator listens to both parties, finds ways to reach common ground, and may even make recommendations for ways to resolve differences, based in part on what the mediator determines will meet the needs of both parties. Although the mediator will not give legal advice to either party, the mediator can be an extra voice of reason in one or both rooms, helping the parties to understand how the outcome at court could be worse or better than what is being proposed by the other party, especially in light of the high cost of moving forward to a trial. Unlike a judge, the mediator does not make any decisions about the outcome of the case – whether the parties settle and on what terms is solely up to the parties.
PREPARING FOR MEDIATION
Mediation typically occurs in the later stages of a divorce or custody case, although there is nothing preventing parties from attending mediation at any time. Before mediation can be effective, both parties and their attorneys need to have enough information to understand the range of possible outcomes in the event the case goes to trial. Without that information, neither the party nor their counsel will know whether a particular agreement is a reasonable one or not. As a general rule, no one wants to settle for something that is worse than their worst day in court, but a party must know what that “worst day” looks like to make an informed decision about settlement. This can mean exchanging financial data, valuing assets, or exchanging information about the children. In many cases, it can take several months before a case is ready for mediation.
Other preparations can include:
- Preparing Financial Spreadsheets. Spreadsheets listing all assets and liabilities are prepared. Several different proposals using the spreadsheets are prepared and may be used as offers.
- Preparing Proposals Regarding the Children. This can include options for custody, visitation, child support, and other important issues, such as where the children will attend school and who will make important decisions for the child.
- Preparing Terms of Ancillary Agreements. The ultimate goal of mediation is to resolve all issues – the property division and all the terms for the children. Some assets may require ancillary agreements, such as the terms of a co-ownership agreement pending sale of real property or the terms of a constructive trust agreement for unvested stock units, a portion of which may be held in trust for one party until vesting occurs, While more detailed agreements may be drafted after mediation as part of finalizing the case, the basic terms of such agreements should be included in the mediated settlement agreement.
- Preparing a Confidential Letter for the Mediator. Your lawyer will want to submit information to the mediator before mediation to describe relevant information and articulate your goals. This helps the mediator use his or her time efficiently during mediation. If the mediator is already familiar with the basic factual background, the nature of the assets, and any disagreements regarding the children, the mediator can spend time working on solutions rather than listening to the history of the case once mediation gets started.
WHAT TO EXPECT ON THE DAY OF MEDIATION
Mediation always occurs on a date that is scheduled in advance. This ensures that both parties and their attorneys will be available and prepared. Mediation can often be a long and difficult day. The length of the mediation session varies, but most last all day.
During a mediation, the two parties (each with his or her attorney) will likely sit in two separate rooms. The mediator moves back and forth between the two rooms, communicating offers back and forth between the parties.
If mediation is successful, the mediator will prepare a mediated settlement agreement for each party to sign. Your lawyer will carefully review this document to make certain is includes all agreements reached by the parties. Once signed, the agreement is effective immediately.
WHAT TO EXPECT AFTER MEDIATION
After mediation, the lawyers still have paperwork to finish. This includes drafting a final order and other documents based on the mediated settlement agreement. Once the paperwork is finished, a judge will sign and approve the paperwork. This typically signifies the end of the divorce or custody case.
MEDIATOR SERVICES
Many of the NMSB attorneys are trained and experienced family law mediators. Keith Maples, Andi St. Leger, and Sam Colletti are available to serve as informed, effective mediators for family law matters. We stay abreast of trends and changes in the law as well as how judges are ruling on family law matters.
We mediate both litigated and collaborative law cases. We also serve as arbitrators, on both full and limited issues, often for clients who prefer to avoid the publicity of the courthouse.
To each mediation, we bring experience as both litigators and collaborative law practitioners. This perspective helps in shaping and negotiating sensitive, wise solutions acceptable to both parties.
EXPANDED MEDIATION SERVICES
TWO-STEP MEDIATION
Two-Step Mediation is a new offering designed to eliminate the common frustration: “it’s already 1:00pm and we don’t even have a first offer yet!” This concerns the mediator, parties, and lawyers alike. It often leads to running out of time without a settlement and erodes confidence in the process. Two-Step Mediation recognizes that many cases have too many issues to tackle in one day, and instead spreads the process across two sessions. The first half-day introduces the process, completes information exchange, and puts a first offer from each side on paper. The mediator then provides direction on second offers and coordinates further informal discovery. The second meeting, ideally within two weeks, starts with second offers from each side. This phased approach is more realistic about the time demands and logistical challenges of mediation, and often helps better align clients’ and lawyers’ expectations—resulting in less frustration and higher likelihood of settlement.
DRIVE-BY MEDIATION
When Drive-By Mediation is a quick, flat-fee, Zoom mediation in which the parties and lawyers appear with an agreement ready to go (or almost ready, at least). The crucial benefit of Drive-By Mediation is that by signing the deal within the “container” of mediation, the agreement becomes a Mediated Settlement Agreement (MSA) which is defined in Texas law as being immediately binding and irrevocable. In contrast, signing the same deal outside of mediation leaves some wiggle room for a party to renege on the deal.
COLLABORATIVE MEDIATION
Collaborative Mediation refers to a mediation that arises out of a Collaborative Divorce process. Collaborative Divorce is where the parties and lawyers sign a contract at the beginning of the case that says they will not go to court for any reason except to have the judge sign their final agreement at the end. The case proceeds as a series of meetings, with both parties and attorneys and usually a neutral counselor/therapist serving as a meeting facilitator. Through those meetings, the parties identify their shared goals and develop a plan for a divorce settlement that will work for both parties, with a focus on the children’s needs. Collaborative Divorce has a great success rate but sometimes the process can stall out—and that’s when it is time to schedule a Collaborative Mediation. In this situation you want a mediator who is trained and experienced in both Collaborative Divorce and traditional litigated divorce. The mediator should bring an appreciation for the good progress the parties have made in the Collaborative process, and also be ready to evaluate and explain the likely range of courtroom outcomes.
TEMPORARY ORDERS MEDIATION
Temporary Orders is a critical early juncture in the divorce process. Divorce cases often proceed to court for a temporary orders hearing when the parties cannot agree on the logistics of separation. Most often the disputes center on the child custody schedule and child support, though other issues are often contested as well. Temporary Orders Mediation is an alternative to a risky and unpredictable court battle. With good counsel and a good mediator, the parties to a divorce are likely to craft a temporary arrangement that is better-tailored to their unique family situation than the typical cookie-cutter court rulings. And, importantly, parties who reach a mediated settlement for temporary orders are more likely to eventually settle the whole case, in part because they will have avoided the ugliness of confronting their spouse in court and saying things that cannot be unsaid.
MEDIATION/ARBITRATION (“MED-ARB”)
Med-Arb is a customizable dispute resolution process in which the parties and lawyers first attempt to reach a mediated settlement, and if an impasse is reached, the Mediator then changes roles and becomes an Arbitrator and issues a ruling that is binding on the parties. Med-Arb can be used in divorce or custody cases, and also for temporary orders.
ARBITRATION/MEDIATION (“ARB-MED”)
Arb-Med is similar to Med-Arb except the process is reversed: the parties and their lawyers first present the case for Arbitration (similar to a court proceeding but private and less formal) then the Arbitrator makes a ruling but does not share it with anyone. Then the Arbitrator changes roles and becomes the Mediator, and the parties and lawyers — having heard each other’s presentation of the case and knowing that the Arbitrator has already made a decision (that could be a win or a loss) — proceed with a mediation and attempt to reach a settlement. If an impasse is reached in mediation, the Arbitrator’s previously-secret ruling is then shared and becomes the binding resolution.
MEDIATED CASE MANAGEMENT
Mediated Case Management (MCM) is an innovative plan for handling cases where parties aim to avoid the courtroom. Positioned between litigated and collaborative cases, MCM introduces mediation early to address separation logistics and emergent issues. The case then proceeds with shorter mediation meetings to resolve discovery issues or changes in circumstances, culminating in a final mediation day to settle the case. This adaptable process meets the specific needs of each case.
MCM benefits clients, lawyers, and the court. It keeps clients focused on resolving disputes out of court, with the mediator serving as both an objective listener and an evaluative voice. This helps clients feel heard while aligning their expectations with realistic outcomes. MCM builds settlement momentum by creating small wins, enhancing the belief in their ability to resolve conflicts without court intervention.
Lawyers benefit from the mediator’s objective perspective, allowing them to advocate appropriately while respecting clients’ desires for out-of-court resolutions. The court benefits by reducing preliminary hearings for temporary orders and discovery disputes. Early and recurring mediated resolutions increase clients’ investment in the process, making it less likely the case will go to trial. MCM provides a cooperative approach to family law disputes, allowing clients to share their stories and reducing risks for all parties.
