Sunday, April 7, 2013

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!

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