Mediation

A Time and Money Saving Alternative for Divorce & Family Legal Issues

Mediation offers an alternative to litigation where emotions are strained, cooperation is shattered, finances are drained, and court induced trauma takes its toll on children.

Sometimes divorcing couples need guidance and motivation to quit arguing and stop blaming each other so they can get on with their lives. While each spouse may be stubbornly hanging onto self-interests, reaching a compromise for settlement is also self-serving in that it ends their conflict.

A family law attorney can advise you of your rights, and a mediator can help lead you to resolution.

Mediation – A Popular Alternative

These days, mediation is being used extensively in favor of litigation throughout large cities in Texas, such as Dallas, Fort Worth, Houston and other communities. In addition to voluntary increase in the use of mediation, Texas courts are frequently ordering mediation before allowing a case to go trial.

In most cases that are mediated, each spouse obtains his and her own lawyer for legal advice, and the mediator, who is an attorney trained in mediation, handles the mediation sessions. While more uncommon, parties can be pro se during mediation, meaning they have no lawyer and represent themselves. Generally, mediators are less willing to mediate for a pro se party because of the tendency that pro se parties have to approach the mediator for legal advice (even though mediation prohibits the mediator from providing legal advice). Even so, some mediators agree to work with pro se cases. An estimated 80% of all cases using mediation reach a settlement.

Important Facts about Mediation

1. Mediation can resolve the following disputed issues by reaching agreements:

   Divorce Issues

   • Parental planning to structure joint visitation and living arrangements for children
   • Property division that takes tax consequences into consideration
   • Financial planning to address child support and spousal maintenance
   • Equitable distribution through real estate property valuation and business appraisals

   Other Family Issues

   • Pre-marital agreements to address financial conflicts
   • Post marital agreements to resolve ownership/financial management issues
   • Guardianship disputes
   • Family business disputes
   • Conflicts over adoption, paternity and other family law areas
   • Modification of final decrees

2. Flexible Timeframe

   Mediation doesn’t have the same time constraints as litigation. Sessions are usually scheduled for a full day or half day, depending on what works best for parties involved. The overall length of mediation depends on how long it takes to negotiate a fair settlement for the issues being addressed.

3. A Private Process

   During litigation, a court recorder notes down what occurs and it becomes part of public records in addition to proceedings that may be open to the public or press. In contrast, mediation is conducted behind closed doors and is a private matter.

4. A Confidential Process

   Under the Texas Alternative Dispute Resolution (ADR) Act, discussions during mediation must be held confidential, and if a trial becomes necessary, communications from mediation may not be entered as evidence.

5. Control of Outcome

   The power of decision regarding issues being addressed remains with the spouses who must arrive at a settlement together, unlike litigation where a judge or jury rules on the outcome.
6. Innovative Solutions Outside professional help (neutral experts such as tax/financial consultants, appraisers, etc.), along with brainstorming and creative approaches to problems can be used during mediation, which takes a problem-solving, forward look at issues. Litigation, on the other hand, is based on adversarial presentations of past occurrences and must follow strict courtroom procedures and rules.

7. Cooperative Outlooks for the Future

   Ex-spouses are oriented toward cooperating with each other in an atmosphere promoting dignity and respect. Consequently, the agreements reached are more likely to be valued, followed and obeyed by both sides.

8. Cost-effective Settlements

   Issues are usually resolved quickly through mediation and with less expense than through collaborative law, negotiated settlements or courtroom litigation. Courtroom costs for legal actions, such as discovery and filing fees for motions are avoided when mediation is successful. The only filing fee a successful mediation incurs is the cost to file the proposed agreement for the final decree.

9. Final Agreement

   When a couple reaches a final settlement through mediation, the mediator drafts documentation, which is signed by both spouses. The documentation once filed with the court becomes binding if accepted by the judge.

As an alternative, mediation puts family matters in the hands of professionals who take the time to know and understand your issues. Your concerns and opinions can be voiced and heard, and in that respect, you are the captain of your own ship. You do not have to rely on a judge who has a superficial view of your shortcomings, as they are presented in an adversarial atmosphere. Nor do you have to bow down to restrictive procedures and abide by an outcome you had little part in determining. Even if you only reach a partial settlement through mediation, fewer issues would have to be addressed through litigation, should litigation become necessary.