My practice includes many forms of mediation. I have been appointed by Courts for mediation in cases pending before the Court; I have been the mediator for mediation in cases with attorneys who know and approve of my skills in mediation; and I have been the mediator in mediation with parties who wish to try to settle their divorce before they hire attorneys.
Mediation is a process that does not make decisions for the parties. A mediator in mediation is only the knowledgeable messenger. The mediator in mediation tries to help the parties reach agreements about their divorce, their division of property, and the matters of child custody, child support, and periods of possession of the children and any other agreements they may make, but does not make any decision for them. In mediation, the result is the decision of the parties involved.
The most common use of “mediation” to resolve disputes is after the disputes have already become lawsuits. It is possible to participate in mediation before a lawsuit is filed. Whether the goal is to resolve a divorce or modify the existing orders for child support or visitation or custody, mediation can occur before the lawsuit is filed. Mediation allows the parties to participate with a neutral third party, the Mediator who listens to the position of each party and tries to help the parties settle their dispute prior to the battle beginning between the parties. In mediation, the mediator has no authority and cannot make any decisions or judgment. The entire control of the decision made is up to the parties involved in the mediation, but discussion of the existing statutes and practices of the courts will sometimes help the parties examine their positions and decide whether the expense of litigation is worth the risk of spending money in litigation which may not bring the desired result.
Mediators range in training from practicing attorneys, retired judges or other professionals. It is my belief that mediation of a Family Law case requires an attorney who specializes in Family Law, an attorney who knows the law for Family Law disputes, who knows what can be expected in litigation in a Family Law case, and knows the expense, stress, and sometimes heartbreak of the litigation of a Family Law matter. Together with knowledge of Family Law, it is necessary that the Family Law mediator have absolute neutrality. During the Family Law mediation, each party may believe that the mediator is supporting one side or the other, but the mediation which is most successful in Family Law is usually what is called “risk analysis”, which is basically confronting each party participating in the mediation with, “but what if you are wrong”, and helping both parties recognize the strengths and weaknesses of each parties’ case or ability to obtain their desired result. The ability to evaluate a Family Law case and help resolve the Family Law case in mediation, requires knowledge of Family Law. After 33 years of resolving Family Law disputes as a mediator or litigator, and having been a specialist in Family Law, certified by the Texas Board of Legal Specialization, since 1983, I am in a position to help you resolve your dispute without litigation. Whether the parties ultimately come to an agreement is in their hands, not mine, but mediation is successful in over 85% of all Family Law cases. There are no guarantees, but Family Law mediation is certainly worth a try when the cost of litigation and the stress placed on the parties and their children is considered. In examining the risks and costs of resolving their Family Law dispute before a judge or jury, mediation can be a wonderful alternative.
Ninety-five percent of litigated Family Law cases settle before trial. Some settle early, others settle on the eve of trial, most settle in mandated or agreed mediation. The difference between mediating before litigation or after litigation has begun is the amount of money, time and emotional energy a party will spend in getting from beginning to end. The belief that one party will pay the other parties’ expenses and attorney fees in litigation is a very risky belief. In most cases, both parties pay their own costs.
Mediation in a Family Law case before a lawsuit is filed enables the parties to present their case to a mutually selected neutral person before any money is spent on litigation. Many times the process of telling your story in mediation will help in the settlement process. The cost of mediating a case (which can be as little as a few hundred dollars, or as much as several thousand dollars) is minimal compared to the costs incurred through the life of a lawsuit.
Mediation Before the Battle
Have you considered mediation before the battle begins? If you and your spouse are both ready to end your marriage and you don’t want to end up in the War of the Roses, you might want to mediate those things you have not already resolved between you. I can help you with all disputed issues remaining and complete your divorce without court intervention.
In the situation in which you participate in mediation before you hire separate attorneys, you examine together how the property you have accumulated should be divided between you and what arrangements are in the best interest of your children. I can help you in the process in mediation. In mediaiton of this type, the mediation is not confidential, and the mediator does not represent either party, but can help the parties make decisions that prevent litigation and minimize the impact on any children.
Make an appointment together to discuss with me the possibility of mediating your differences. I can help you settle, help you prepare all necessary documents, and help you finalize the divorce. What I cannot do, if you decide to mediate before litigation, is represent either of you should the mediation fail. Each of you would be required to obtain other counsel.
Will the Court Make Me Mediate?
All courts have different policies. To determine what the court requires, it is necessary that you discuss your situation with your attorney. In my experience, if a case is headed for trial and will take more than a few hours, the court may make you go to mediation. Even if it is not the court’s policy in the court in which your case is filed, most attorneys will encourage mediation because the cost of trial, in dollars, emotional upheaval and anxiety make mediation very worthwhile. It is also common that, after all the stones are thrown at one another in a public forum, the ability of parents to work together to raise their children is compromised. Mediation gives the opportunity to confront your spouse through a third party, i.e., the mediator. Frequently, the excessive backlog in court calendars makes mediation an attractive alternative, resulting in the resolution of disputes in a timely manner, and avoiding the delay that the court’s docket experiences.