Sunday, March 1, 2020

Why You Need a Lawyer for Mediation

Mediation is a great process for resolving disputes. I am a mediator and an advocate for it. However, I strongly believe mediation works better with attorneys involved.

My comments are applicable to mediations in Texas which are usually done as a day or half-day event, usually with attorneys for each party. In family law cases, it is usually done where the two sides sit in separate rooms, each with their own attorney. The mediator goes back and forth from room to room, asking questions and conveying information and proposals.

Here are some ways attorneys can be very beneficial to their clients in the process.


There are a number of things your attorney can do to help you prepare for mediation.

  • Gather the documents you need.
  • Prepare charts or exhibits to help your case.
  • Review information from the other side.
  • Plan strategy.
  • Explain the issues for you.
  • Explain procedures in mediation and in your case.
  • Discuss the legal context with you.
  • Discuss and develop possible outcomes.
During Mediation

Mediation is a slow-moving process, with lots of time for thinking, discussion and just plain waiting. During the down times, when the mediator is not with you, your attorney can be doing things to help you.
  • Reassure you if you start thinking the mediator is on your spouse's side (a common feeling). That often comes up when the mediator spends a lot of time with the other side, but it's never the case because the mediator remains neutral. Sometimes it's just hard to get someone to make a decision, as you may know from experience.
  • Remind you that the mediator is just playing the devil's advocate when he/she asks you a lot of questions about your position, your proposal or the facts. The mediator will not take sides, but will challenge both sides with questions.
  • Help you with ideas and new possibilities for settlement, or new ways to view the situation.
  • Watch out for unexpected consequences for you.
  • Remind you of your most important goals and needs.  It's easy to get caught up in emotions or conflict in mediation.  Remember, you are there to settle and end the litigation!
The Agreement

When mediation is successful in reaching agreement, the next (equally difficult) step is to agree on the wording of the Mediated Settlement Agreement which will be binding on everyone once it is signed. There is no standard Mediated Settlement Agreement. A new one must  be created for each case.
  • Keep in mind, no matter what was discussed or noted, this document controls. Prior discussions or wording have no effect unless they are explicitly included in the Agreement.
  • The Agreement must be very precise and you must be careful to make sure everything is included and correctly stated.  You can't go back later and change or correct things.
  • Your attorney should explain the wording and the Agreement to you to make sure you understand it and really agree. The attorney should make sure to check on whether you are assuming anything that is not included in the Agreement. 
Why is All This Important?
Mediation is required for almost all family law cases in Texas before they can go to trial. Most mediations are successful. Even if they don't settle on the mediation date, a significant number will later settle before trial. Almost no cases go to trial. Therefore, it makes sense to take the process seriously and take advantage of the opportunity to save time and money through settlement!