Don't Fear Mediation

In most divorce or family law cases, at least in Tarrant County, the courts encourage or require the parties to go to mediation.  There's always a line on a scheduling order to put a deadline to complete mediation.  The main reason for doing that is that the process works and very few cases actually have to go to trial.

Sometimes, attorneys don't do a good job of explaining how and why mediation works.  In case you are facing a half or full day of mediation and are wondering what to expect and how to act, here's some information that may help you.

1.     Voluntary process.  Although most judges, will require mediation, there is no compulsion in reaching an agreement.  No one can force you to agree to something you don't want to accept.  There will certainly be attempts to persuade both parties to come to agreement, but the bottom line is -- you don't have to agree to anything.

2.     Confidential process.  Whatever you say and do in mediation is confidential (with some very narrow criminal law exceptions), so both parties are encouraged to think and speak freely.  If you make settlement offers, they can't be presented in court against you.  Neither party can testify about what was said in the mediation, so you can make whatever offers and arguments you believe will help your case.  You can make a better offer in mediation than you might in court, if you wish.  That freedom can lead to creativity or more effective negotiations.  You also can feel safe in the process.

3.     Mediator neutral.  The mediator doesn't take sides or make a decision.  A good mediator will often play the role of "the devil's advocate" by questioning each party's positions and arguing like the other party might.  It helps both parties understand each other and can help break through deadlocks.  Dealing with a neutral whose job is to help both parties reach an agreement provides a safe and productive arena for settlement.

4.     Gaining information.  During a mediation, both parties tend to learn more about the other party's positions and motivations.  Mediation often provides a way to get quick and direct responses and information about issues.  That normally doesn't happen in court.  Almost always, mediation helps both parties understand more about each other.  That's helpful even if you don't settle.

5.     Cheaper than a hearing.  Mediation is somewhat costly since you have to pay for your attorneys and the mediator. Still, there is greater preparation required for trial and a greater time commitment for you and your attorney if you go to trial.  A trial is infinitely more stressful than a mediation.

If you have mediation coming up, or your attorney is talking about mediation, you need to prepare for the mediation, but you should welcome the opportunity to come to an agreement in a relatively pleasant environment.  Good luck!

What Happens After Mediation?

Mediation is one of the best ways to settle divorces or other family law issues, assuming that Collaborative Law is not utilized. With significant effort by both sides, mediation is very successful, resolving around 90% of the cases, at least in my experience. Even those that don't settle at mediation become more likely to eventually settle short of trial.

Mediation can be very emotionally draining and often leaves the parties exhausted, but generally pleased to have the matter resolved. After all the time and energy has gone into preparing for mediation and then working through the negotiations, the post-agreement steps are not really discussed much. So, what goes on after mediation?

• The parties normally leave the mediation site with a written and signed mediation agreement that spells everything out in great detail, although not in formal language. The first step, post mediation, is to have the formal agreement/court order drawn up. The attorneys will make sure that appropriate language is included to make the agreement clear and enforceable.
• The agreement/order is then reviewed by the parties and their attorneys. Once everyone approves the language, they sign it. The signed agreement/order is then submitted to the court. Sometimes, the order can be signed by a judge without a formal prove-up; other times, at least one party and his/her attorney will have to appear in court and have a brief prove-up hearing.
• Some additional paperwork often must be filed with the court to comply with local and state rules. Vital statistics forms are used and sometimes a child support form will be required.
• There may also be some brief, related court orders, such as a wage assignment, a medical support order or a qualified domestic relations order (also known as a QDRO), which may need to be signed by the judge. The wage assignment sets up a mechanism to automatically withhold funds from a parent's paycheck and then send the funds to the other parent. The medical support order similarly provides for payment for medical expenses and insurance provisions. The QDRO divides a retirement plan so that whenever payments are paid out from a plan, they are automatically divided between the two parties.
• There may be some real estate documents, possibly including a deed, deed of trust and a note for payment of a share of the equity. There can be assignments of mineral interests, utility deposits and other interests. Utility services may need to transferred.
• Car titles may need to be signed, or a power of attorney, limited to transferring a car title, may be used.
• Additionally, the parties will need to change their health, home, life and auto insurance.
• Sometimes, the parties will still need to separate their credit cards, although that is often done during a divorce.
• Parties also need to revise their wills and plan executors and beneficiaries.
• Furniture and belongings may still need to be separated and a specific date and time should be set to do that.
• The family photos and videos may need to be copied, scanned or otherwise divided between the parties.

As you can see, there's a lot that goes on before the fat lady sings. After the main court order is completed, the work is not too difficult. There's just a lot of loose ends to take care of. Hopefully, the list above will help you think about what needs to be done in your case after mediation.

Marriage Mediation

Sam Hasler, of Sam Hasler's Indiana Divorce & Family Law Blog, always has interesting articles on a variety of subjects. I have just read a recent post of his that has an excellent innovation. He apparently got the information from The Florida Divorce Blog, another good read. Sam's post is reproduced below:

"Here is an interesting idea from The Florida Divorce Blog - A Modern Spin on Marriage Counseling:

'Enter a modern spin on marriage counseling: Marital Mediation. Anyone familiar with the divorce process is likely acquainted with mediation in divorce cases. Well, a Connecticut mediator and social psychologist is applying mediation techniques to marriage counseling. The Marital Mediation process flushes out areas of conflict and fosters communication and negotiation, and facilitates agreements on mutually desirable corrective actions.'

"I know of no one offering this sort of service in Indiana but it seems like something that needs only someone to make the first move."

This seems like a great idea to me. In speaking with prospective new clients, I often have a feeling that there could be a way to save the marriage. Right now, I generally suggest counseling, and there are a number of good counselors in the area. Sometimes, though, an approach with a different orientation might be better, especially for some personalities. Some people, for example, see themselves as problem solvers and they can be uncomfortable in traditional counseling -- they may see it as wishy-washy or too undirected. A good mediator, with a counseling background, on the other hand, might really be able to help the parties in such a relationship.

Such counseling/mediation would be a little similar to a stripped-down version of Collaborative Law. They could start out determining what goals they have in common, then figure out what their issues are about and finally work to create new ways to solve the problems they identify and achieve their goals. It sounds like a great idea and I hope some counselors in this area will become interested in starting up such a practice.