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 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.
Many of the NEMSB 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.