Wednesday, May 30, 2012

Why Does Mediation Work?

Mediation is encouraged/required in most family law cases filed in Tarrant County, Texas.  Courts want to have hearings only when necessary, and they know that mediation settles almost every case where it is used.  There are certainly some cases where nothing will help the parties to agree, but all experienced attorneys have mediated cases that reached agreements where it seemed like there was no chance ahead of time.  Mediation sometimes almost feels magical in its ability to help parties come to agreements.

Here's a non-magical explanation of why mediation works.

1.  There's a focus on problem-solving.  When mediation is scheduled, the goal is usually to reach a final agreement on a divorce or on a modification order relating to children's issues.  Sometimes, mediation is used on other issues or at different stages in disputes, but most commonly, the goal becomes to reach a final resolution.  In contrast, much of litigation is about investigation, making temporary arrangements, dealing with discovery disputes and other interim issues.  When you show up for mediation, everyone knows it's time to get down to business.

2.  A specially-trained neutral person helps both parties.  Judges are neutral, but they have a different job.  They listen to evidence and arguments and then make a decision which the parties must live with.  In mediation, the mediator does not impose any decisions.  The mediator keeps the parties talking and considering alternatives until the parties themselves reach an agreement about how they want things done.  The mediator helps the parties come to the agreement.  The mediator has been trained in communication skills to be able to listen better, ask questions and be supportive as the parties think and work through the issues.

3.  Each party gets heard.  This is a huge benefit of mediation.  Even though each side theoretically can testify and present evidence in court, there is no free flow of communication.  Rules of evidence and procedure constrict the flow of information.  Those rules are necessary for court, but they don't feel good to the parties who want their say in court.  In mediation, the mediator will listen to both parties and give them plenty of time to express what they want to convey.

4.  The process is safe and private.  Many people aren't happy about having to testify, or to be testified about, in open court.  They don't want their private lives exposed in public.  Court hearings are open to the public.  Mediations are not.  In Texas, the parties most often work in the "caucus" style, meaning that each party remains in a separate room and they normally don't see or hear the other party directly during the mediation.  The mediator goes back and forth, carrying information, offers and responses.  Most people seem to appreciate not having to confront the other party in the stressful situation of mediation.

5.  There's an end in sight.  Mediation almost always works.  When there is an agreement, the mediator prepares a written agreement which is signed by both parties and their attorneys.  The agreement is very detailed and always contains the magic words that the agreement is binding and irrevocable.  With that, judges will uphold and enforce the agreement.  The parties need to make sure they are satisfied with the agreement, because it will be binding once everyone signs.  After that, there's no backing out.

In the ordinary case, magic isn't required.  Mediation provides a safe, controlled, private forum where each party gets to be heard by a neutral third party.  Some people feel validated and some just need to let off steam.  Whatever is needed can usually be provided in the mediation process.

Monday, May 21, 2012

Should You Try Mediation?

Simple answer:  Yes!  

Here are some reasons why you should plan on using mediation:

  • Judges almost always require it, at least in Tarrant County, Texas divorces.  If you can't quickly get your case settled otherwise, your Judge will almost always order the parties to go to mediation prior to trial.
  • The process works.  In my experience, it seems to work about 80-90% of the time.  Even in the cases where we don't end the session with an agreement, the parties almost always come to an agreement shortly afterwards on their own.  In most cases, if there's no final agreement, at least some issues get disposed of or at least narrowed.  That will save time if you ever go to court.
  • Mediation is good for the parties.  It's a private and confidential process.  Negotiations take place away from the courthouse and information is not so publicly exposed as it would be in a trial.  It's also good because it brings an end to the legal dispute and the parties get to be the ones deciding how it is resolved.  It's also usually cheaper than preparing for, and going to, trial.
  • Mediation is often better than the alternative.  Sometimes, clients fear testifying in court, so mediation sessions become very appealing.  Sometimes, clients just don't make good witnesses, or they may be unsympathetic people, or  they may have some bad history they don't want brought out.  Sometimes, clients run out of money and can't afford to get experts, and pay for the preparation for trial.  For all those people, mediation is a safer alternative.
  • The result of a successful mediation is an enforceable agreement.  Courts are unanimous in supporting and enforcing properly signed and prepared  mediation settlement agreements.  You don't have to worry about someone changing their mind.  CAVEAT:  Be sure you understand and agree to everything, exactly as written, before you sign off on the mediation agreement.

Wednesday, May 2, 2012

Don't Write on Original Documents!

One of the best, appropriately brief  posts I have seen in a while comes from Mark Chinn's blog from April 30, 2012. Mark is an outstanding Family Law attorney in Jackson, MS and has been producing a very nice blog on Family Law issues.  It has excellent advice for something that comes up once in a while.

Sometimes, while preparing a case, it becomes important for a client to bring a document to the lawyer to help prove a point.  Documents include tax returns, various applications, certificates, old court pleadings, accounting records, letters and many other things.  The documents need to be in good condition and hopefully, be originals.  Which brings us to the advice:

PLEASE don't write on original documents!  Your writing can make the document hard to read, but more importantly, it may become inadmissible because it contains hearsay and because it is no longer authentic.  The extra writing is considered hearsay, which is generally inadmissible, and the document has been changed into something new by the writing.  It may seem like a trivial technicality, but that writing does cause a problem.

HOW TO AVOID THE PROBLEM?  There are several simple solutions:
  • Make a copy and write your notes on the copy.
  • Scan the document and make a PDF.  Then print the document and put your comments on that copy.
  • Use a sticky note for your comments.
  • Just make notes on a separate page.
  • Use self restraint. Don't write comments. Just tell your comments to your attorney. 
Your attorney will be much happier and your case will be in better shape if you follow this advice!