Tuesday, December 1, 2015

Don't Fear Mediation!

Almost every litigated divorce will end up in mediation, unless the parties can somehow come to agreement just by talking directly or talking through the attorneys.  Because those voluntary agreements are very rare and because trials are expensive and involve a long wait, most divorce cases are resolved through mediation.

Texas Mediation.  In case you aren't familiar with mediation yet, it is a negotiation and settlement process in which both sides work with a neutral third party, the mediator.  In Texas, or at least North Texas, most family law mediations involve each party sitting with their lawyer in a separate room and the mediator going back and forth between rooms.  Sometimes, the parties and their lawyers all share the same room with the mediator, and that can be effective, but most of the attorneys prefer to have the separate rooms.

The main reason mediation is used so often is that it works.  Here are some key points to know about mediation.

1.  It's voluntary.  No one imposes a judgment or just makes a decision that binds everyone.  There's no "decider", other than both parties.  To have an agreement or resolution, both parties must come to the same agreement.

2.  It's confidential.  What's said and done in mediation stays in mediation.  You can make statements and propose agreement terms and they can't be used in court if the process fails.  You have more freedom to be creative and not have it come back to bite you. That helps make the process safe.

3.  The mediator is neutral.  The mediator doesn't make a decision and doesn't take sides.  The mediator's role is to facilitate communication and keep the parties talking. The mediator will play the "devil's advocate" and try to help each party better understand the other side's positions, but the mediator won't work for one side against the other. Neutrality also helps make the process safe.

4.  You can learn information in the process. Frequently, facing mediation encourages both sides to update information and look at all the issues.  Parties can learn a lot about the side's issues and about property and other matters that may not have been fully disclosed or answered previously. Exchanging information is a major part of mediation.

5.  It's cheaper than a trial.  While there is definitely a significant expense associated with mediation, from the mediator's fee to the attorney's time at mediation and preparation, a trial is still generally more expensive.  With a trial, there's more preparation, with several special documents normally required to be prepared.  A trial will usually be the same amount of time or more, but the preparation time is much greater.

Don't fear or be anxious about mediation.  Look forward to it!  You can expect to get your litigation over so you can get on with your life.  Good luck!