Mediation

It may be possible to find a few mediators who will do this, but most will not represent clients that do not have attorneys. The reason is that neither party understands the law and the unintended consequences, and the mediator CANNOT give legal advice to either.

The movie “Marriage Story” included a scene where the parties went to a divorce mediator. The mediator in the movie seemed more like a therapist than an attorney. The movie was set in New York City, so it might be possible in New York State.

Yes, it is possible to come to an agreement at the Dispute Resolution Center. However, the mediators are not attorneys and receive 40 hours of training. They too cannot give legal advice.

In most counties in Texas, courts mandate that the case go to mediation prior to obtaining a court date for final trial. Family law courts are crowded, and mediation is a good way to settle cases. Also, mediation provides clients’ the ability to be in control of the outcome. You have the ability to say what items are negotiable and those that are not. In a trial, the court hears a snippet of testimony, and then the judge makes a decision. You have to accept the judge’s decision without the ability to negotiate. In addition, trials are very expensive. Your attorney and staff must learn your case inside and out to prepare for trial. So not only are you paying the hourly rate during the trial, but you are also paying for preparation time. Preparation time is at least equal and is probably twice as much time as the court time.

At mediation, you and your attorney are usually in a private room, as is your spouse and his attorney. The mediator goes back and forth between the sides trying to strike a compromise. Most mediators are sensitive to clients that do not want to engage with their soon to be ex-spouse and are able to assist so that everyone can relax and work on an agreement.

No one is under any obligation to agree to any settlement.

If your mediation is successful, you and your spouse and the attorneys will sign a Mediated Settlement Agreement. This is an irrevocable agreement that sets out the terms of the agreement. After that, one side will draft the final decree of divorce or final order, and both clients and the other attorney will have a chance to review the draft and make comments or suggested language.

Occasionally one of the parties expresses “buyer’s remorse” in signing the Mediated Settlement Agreement. What can be done? In the absence of fraud or coercion, the document is irrevocable. Fraud and coercion have legal definitions. There are very few Mediated Settlement Agreements that are overturned.

Some but not all Mediated Settlement Agreements include a clause that the mediator becomes the arbitrator for any disagreements in drafting language. Otherwise a Judge decides the language.

A mediator is an attorney and is hired to work with the parties and attorneys to help forge a compromise. The parties are under no obligation to settle. An arbitrator is an attorney that has the power to decide a matter, much like a judge. The parties must accept the ruling of the arbitrator. If the mediator is also the arbitrator, more than likely they understand the intent of the parties, and can make a ruling.

Sometimes. It is at the discretion of the mediator whether outside parties can attend the mediation. It is on a case by case basis depending on if the mediator feels that the additional person will help or hurt the chances of a settlement. In reality, you are able to talk, text or email with that other party.

Mediations vary by case. Most are full day mediations, but some are set at half-day. The length depends on the number and complexity of the case. A half-day mediation often becomes full-day if progress on the issues is being made. A full day mediation can run into the evening. However, it is usually ill-advised to continue to mediate into the wee hours of the night. It is always possible to agree to continue the mediation on another day.

Yes. Usually a case is divided into the property part of the case and the children’s portion of the case. The parties can settle either or both issues in mediation.

Sometimes attorneys prefer to have a trial setting on the calendar that is after the mediation. It can motivate the parties to settle since a trial is expensive and never a slam dunk.

No. Mediation settlement negotiations may not be used in any way outside of the mediation. The mediator’s notes are not available and cannot be produced or subpoenaed to appear at trial.

Your attorney probably has a list of mediators that he/she likes to work with. It is important to choose a mediator not only based on prior cases, but also to look at the issues in the case, the personalities of the clients and the opposing attorney, and make a selection based on the best fit. Choosing a heavy-handed mediator might intimidate some clients but some clients need someone quite forceful. It is more an art than a science. However, former judges often provide mediation services and they are often quite good as they know a lot about what a court might do in a particular set of circumstances.

Meet with your attorney prior to mediation. Discuss items that you can bend upon and what items are deal breakers. Inquire as to how much a trial will cost. Make sure your attorney is prepared with a spreadsheet that is a snapshot of the current marital estate. Be sure that your attorney has provided the mediator with a mediation position letter, detailing the case and your position. During mediation, bring something to do that will keep you distracted while waiting. DO NOT post anything about the mediation on social media, especially along the lines of “I just got the best deal ever – my ex is a dodo” – especially before the ink is dry.