Preparing for Mediation – Texas

It is not strange for some of the prospective clients who consult with me about a divorce to ask why do we need to go to mediation?

Is mediation required to get a Texas divorce? The answer is no mediation is not mandatory to divorce in Texas.

I have found though in most cases mediation is a very good way to settle divorce cases in manner that allows for certainty of the outcome and a way to control cost. In today’s blog to we will discuss why mediating your Texas Divorce Case is a good idea and 5 ways you can prepare your case for mediation.

Why Mediation?

In Tarrant County, mediation has become commonplace.  When there are two attorneys on both sides of family law matter in these counties there rarely question why we do it.

As I mentioned earlier mediation is not required to settle a divorce case in most cases when the parties are agreed. However, many courts in Tarrant county require the parties attempt mediation before asking for a hearing on:

1. Temporary Orders or
2. Final Trial

This means that if you need a hearing mediations may not only be a requirement in many cases, but a stepping-stone before you can progress to the next step in your divorce. I sometimes get the questions can we ask the court to waive the mediation requirement because I know we will never settle?

Yes, we can ask the court to waive the mediation requirement. However, that involves filing a motion and setting that motion for a hearing. Unless there is a good reason like family violence then there is a good chance the judge will say no. This means in most cases it is probably easier and cheaper just to check the box and go to mediation.

If you think of mediation as a stepping-stone, you may be tempted to prepare for the mediation in a casual manner.

However, a better way to prepare for mediation even if the mediation may be unsuccessful is as if you are getting ready for trial. This is because if you settle in mediation then the case is done and costs are minimized. If you do not settle then you are ready for a court hearing.

Mediation Allows Problem Solving and Putting Puzzle Pieces Together

One benefit of mediation it allows for greater critical thinking/problem solving and customization than going to court. In court,  a Judge is limited to what is in the Texas Family Code to deciding the outcome of a case. Parties often want a judge to give them a customized and creative solution to their problems. Unfortunately, because of time and the tools available to a judge in the Texas Family Code this is just not possible.

However, through mediation, the possibilities available to parties are much greater because “tools” are much more exhaustive and are for the most part only limited by their imagination and what they can agree on. Parties can agree to almost anything that is not illegal. Texas case law also says that judges are extremely limited in their ability to refuse to enter a decree based on the agreement of the parties in a mediated settlement agreement.

This means that things would be harder to get a judge to order such as:

1. 50/50 time with the children
2. No Child support
3. Split custody
4. Paying certain bills as child support and more

Are possible through mediation where they would be very unlikely if the case when in front of a judge.

Mediation Saves You Money

One of the most frequently cited reason for attending mediation is the that it can save you a lot of money, versus going to trial. This is likely true, and has been my experience in most cases. However, mediation does not necessarily save money in all cases. If as my clients sometimes tell me this case will never settle turns out to be true it may an additional expense.

However, even when that turns out to be the case I do not believe mediation is a waste of money and effort. I would say over 90% of time I learn more about a case from mediation then I did before. This is generally because I only have my client’s perspective about a case and get to learn more about the facts the other side deems important which allows me to greater prepare for their case.

Mediators Keep the Peace

Another reason that is often given for mediating a case versus going to court, is that it can help save the relationship. Keeping the peace can be important.  The idea behind this is if the case goes into a public courtroom often the parties will be saying hurtful, embarrassing, and possibly untrue bad things about the other party. This behavior can damage or worsen the party’s relationship.

Something the parties should consider is that they will be co-parent their children for nearly two decades after their divorce. If the case goes to trial, you can expect to spend tens of thousands of dollars on the trial.

Generally, afterwards one of the parties will be unhappy and you can expect they will be looking for a chance to take the case back to trial. One philosophy is that by discussing, compromising information, and reaching agreements out of court in mediation can be a much better way the handle disputes.

Mediation Allows Lawyers to be Advocates

A lawyer can advocate for their client at mediation to a degree. It is important to realize the mediator does not make decisions about the case. The mediators job is to settle the case. A settled case can take a lot of different forms.

A lawyer can discuss a client’s options and why an offer is a good deal or the client could do better in trial. Additionally, an attorney can spin certain facts and give a mediator information that the mediator can use as leverage to move the opposing side in the other room.

Mediation Allows Successful Resolution and Finality

Statistically Family law and Divorce parties who go to mediation resolve their differences in mediation more often than they do not. Depending on the source you will hear that 80% to 95% of family law cases settle in mediation. The successful resolution of divorce and family law cases is one of the main reasons judge’s order parties to attend mediation before coming to trial.

Another good reason is that if the case settles it is done you and your spouse do not get to change your mind about the agreement the next day. You are both stuck with the agreement unless you can both agree to change something. This also relates back to cost savings that were discuss above. If the case is over, then you do not need to keep spending money fighting.

Unfortunately, not everyone prepares as thoroughly for mediation as perhaps they should to take advantage of all the benefits of mediation. 5 things the Texas divorce lawyers at the The Fetty Firm, P.C.  like to do to prepare their cases and clients for mediation are as follows:

Things to Do to Prepare for Mediation

Preparing your case for mediation is as important as preparing your case for for trial. As part of your preparations it is important to

– Exchange Inventories and Appraisals along with supporting documents (and do discovery when necessary);

– Exchange settlement offers;

– Prepare a database of assets and liabilities if division is involved;

– Send the mediator what your needs and wants.

– Communicate