What is Mediation?
Mediation is a process in which the parties to a law suit informally and actively participate with their respective counsel and the mediator to obtain a resolution of some or all of the outstanding issues in a law suit. In family law cases such as divorce and custody disputes, judges typically order the parties to participate in mediation prior to final trial. Litigation is an adversarial process that can damage personal relationships. In family law cases in which children are involved, mediation is especially appropriate because the parties will likely need to continue communicating in the future with regard to their children.
Who is the Mediator, and What is the Mediator’s Role?
A mediator is an impartial third-party whose goal is to facilitate communication between the parties and to promote a voluntary settlement of the issues in a law suit. A mediator will not make any findings or decisions or impose a settlement upon anyone. A mediator may make suggestions, but the parties are the ultimate decision makers. A mediator’s duty is to protect the confidentiality of the mediation process. Mediators should encourage the disclosure of information and should assist the parties in considering the benefits, risks, and any alternatives available to them. It is beneficial, but not required, that the mediator be another family law attorney or former family law judge who specializes in family law.
What is the Goal of Mediation and How Does it Work?
The goal of mediation is to reduce contentiousness and high conflict litigation by placing the parties in an environment in which they can actively participate and collaborate in the resolution of their case. By actively participating in mediation, the parties have more control over the outcome of their case and can tailor an agreement to fit the unique needs of their situation. In family law cases, the parties are usually placed in separate rooms with their respective counsel, if represented, and the mediator moves between the two rooms working to find points of agreement. Keeping the parties separated allows each party the freedom to discuss concerns with the mediator and their attorney while maintaining confidential and privileged communications. Each party may share information with the mediator,and the mediator may not disclose that information to the other party unless specifically authorized to do so.
What are the Benefits of Mediation vs. Litigation?
There are many benefits of participating in mediation. First, the mediation proceedings are private and privileged. The mediator may not be required to testify in any proceedings relating to or arising out of the matters in dispute. The mediator may only report to the court that mediation occurred, and whether or not the parties settled or if mediation resulted in an impasse. The mediator is, however, required by law to report child abuse or neglect. Any communications to the mediator are confidential unless express authorization is given to disclose information. Furthermore, mediation proceedings are informal, so no court reporter is present, no record is made of the proceedings, and no ruling is made. Whereas trial occurs in a public forum, mediation is a private and confidential process.Second, in mediation the parties can actively engage with the mediator but, in court the parties are limited in their participation and are typically not allowed to make any comments unless those comments are directly responsive to a question asked by counsel. Furthermore, mediation is typically less expensive than preparing for and attending trial. Finally, the mediation process is not focused on fault or blame. Instead mediation is focused on working constructively and collaboratively towards a mutually agreeable outcome in which neither party feels like a winner or a loser.
What are Some Reasons that Mediation Doesn’t Work?
One reason mediation may fail is if the parties and their respective counsel do not commit to giving their best good-faith efforts to reach a reasonable, mutually agreeable settlement of the case during mediation. Another reason mediation may be unsuccessful is if the parties attend mediation prematurely. It is important to prepare and complete all necessary property and business valuations, address potential tax issues, understand the parties’ assets and debts, and in some cases complete a social study or home study and obtain a recommendation from a forensic expert. A mediator may not give legal advice and when appropriate should encourage the parties to seek legal, financial, tax, or other professional advice before, during, or after the mediation process. A mediator should also explain any potential risks of proceeding without the advice of professionals.
What Happens After a Successful Mediation?
After a successful mediation, the parties leave with a Mediated Settlement Agreement, which is an enforceable agreement in writing,signed by the parties,their attorneys, and the mediator. The provisions of a Mediated Settlement Agreement are then incorporated into a final order which is expanded with more detail that will contain additional provisions necessary to comply with the requirements of the Texas Family Code. The agreements contained in a Mediated Settlement Agreement are binding and irrevocable, and a judgment may be entered consistent with the terms of the Mediated Settlement Agreement.
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