QUESTION 1: DO WE HAVE TO MEDIATE? I FEAR IT WILL BE A WASTE OF TIME BECAUSE MY SPOUSE IS SO DIFFICULT AND UNREASONABLE WE WILL NEVER GET HIM/HER TO AGREE TO ANYTHING.
Most Judges require mediation prior to trial. They do this because statistically speaking 85% of cases settle in mediation. Sometimes instead of requiring mediation the Judge will instead limit your time at trial. For example, Judge Emily Miskel in Collin County currently allows only 1 hour per side for trial if you do not attend mediation.
QUESTION 2: WHO PAYS THE MEDIATOR?
Typically, the parties will each pay ½ of the mediator’s fees. The payment is typically made in advance or at the beginning of the day. Most mediators charge a flat fee for a half day or a whole day. If the whole day is defined as 8 hours most mediators will charge additionally hourly for anytime that exceeds the 8 hours. If the mediation concludes before the 8 hours are used there is typically not a refund made. Most mediators have a cancellation fee which increases as the date of mediation draws near.
QUESTION 3: IS IT BETTER TO MAKE THE FIRST OFFER OR TO LET THEM MAKE THE FIRST OFFER?
When you read negotiation theory there is an argument for both leading out and letting the other side lead out. Sometimes prior to mediation settlement offers have been exchanged and typically the mediator starts with the last one to receive an offer. If no offers have been exchanged typically the mediator will start with the Petitioner.
QUESTION 4: DO WE NEED AN ORDER FROM THE COURT TO MEDIATE?
No, but sometimes the Court does specifically order mediation including the time and place where it will occur, the specific mediator and how the costs of mediation will be allocated. Many mediations occur however by agreement without a court order. Some court’s have a published policy that you must mediator prior to trial or prior to receiving a trial date.
QUESTION 5: HOW DO I SELECT A MEDIATOR? ARE THERE DIFFERENCES IN MEDIATION STYLES?
If you have a lawyer then your lawyer will have mediator recommendations for you. There are different styles- some mediators are bullies and use a bullying technique to force a settlement, some mediators have a more counselor/ empathetic approach. Some mediator’s focus mainly on what will/could happen in Court and they are doing a risk/benefit assessment compared to the Court model. Some mediator’s give you a mediator’s recommendation after hearing the background and after the first offers. If you don’t have a lawyer you could ask the Court for recommendations.
She comes to you! Fill out this online form to request your mediation date!