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.

Preparation

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!

I Don't Want to Use Mediation!

Both kids and adults usually don't like to be forced to do something they don't want to do. If you're an adult dealing with children, you know sometimes you need to force the children to do things that really are beneficial for the children.

That happens all the time for adults going through divorce. Your attorney or the court or the other attorney may tell you that you have to do certain things you don't really want to do.

Sometimes, one of those things is attending medication. There are many objections, such as the cost, taking time off work or you "know" it won't work. But those objections are easily overruled by a court system that now favors mediation as an intermediate step before going to trial.

The simple answer is that you usually have to do mediation regardless of your preferences, but there is some good news. The process usually works. 

Here are some benefits of using mediation:

1.  It's faster than waiting for a trial date. Mediation can usually be scheduled within 1-2 months.  Trials are usually set 6-9 months out.

2.  It's usually cheaper than a trial.  It takes a whole lot less time to prepare for a mediation than to prepare for a trial. That translates into  a big savings for you.

3.  You get to make the decision. When you and the other party reach an agreement, that becomes the final agreement. If you go to court, you turn over all the decision making to the judge who may or may not like you and your ideas. Most people prefer to make their own decisions.

4.  Privacy. Many people prefer to keep their private business, including finances, out of the public view. Mediation is confidential and done in privacy, usually away from the courthouse. Trials are open to the public and you never know who may show up.

5.  Informality. Because mediation takes place at someone's office, things can be a lot more casual. You also don't have to jump through hoops to introduce evidence. You tell or show the mediator anything. Everyone is a lot more comfortable meeting informally with the mediator, rather than following standard courtroom and evidence procedures.

Most attorneys understand that mediation usually settles cases and that it is good for their clients.  Talk to your attorney if you have doubts or if you're just in a hurry to get to court. Mediation is the better path in most cases.

Misconceptions about Mediation without Attorneys

In talking about options with prospective clients, I have discovered a number of misconceptions relating to how mediation works. Many people become interested thinking they can settle a divorce and don't have to pay attorneys. Unfortunately, that is not always a great bargain when people make uninformed, bad decisions for themselves.

Working with an attorney in some capacity can help avoid or minimize problems.  You can hire an attorney and have him/her represent you throughout the divorce process. You can consult with an attorney prior to mediation, or you can hire an attorney to be with you just for the mediation.

As you are deciding whether to hire an attorney, let me point out some common misconceptions I have heard about how mediation supposedly works.

1.  The mediator will listen to both of you and then recommend terms for  a settlement. No. The mediator must remain neutral. Making those decisions for you and your spouse would violate impartiality and lead to the mediator siding with one of you on some issues. You have to make your own proposals.

2.  There's little or no preparation to be done.  Actually, there's often a lot of preparation that is needed. You should gather documents, prepare charts and exhibits and outline the issues and your proposals. You need to have a clear picture in mind for what you want to end up with.

3.  The mediator will make sure you don't make any bad decisions or bad agreements. Wrong. The mediator cannot be neutral if he/she is advising you or your spouse to accept or reject a proposal. I have seen a number of bad decisions come from mediations where attorneys did not participate.

4.  The mediator can prepare the paperwork. No. Again, the mediator must be neutral. Judgment calls must be made numerous times in preparing paperwork for a divorce, and that would violate neutrality.

5.  You can change your mind later after you have agreed. Wrong. Once the agreement is written and signed by the parties, assuming it also contains the statutory warning that the agreement is binding, then the agreement is binding.

6.  You won't be surprised by facts, issues or proposals during the process. No, it happens all the time. With an attorney, you will have an opportunity to respond effectively.

7.  The mediator will make sure you don't overlook something. They cannot take on that role and remain neutral.

Bottom Line:  The 7 statements above are false assumptions made by many parties who try mediation without an attorney's help. Your divorce will have enough financial and family significance that you should hire an attorney so you can settle your case under the best terms for you.

Why Does Mediation Work?

In almost every family law case in Tarrant County, TX, and many other places, the Court will require the parties to attend mediation before they can go to trial.

Mediation, as you may know, is a dispute resolution process outside of court. A neutral 3rd party works with both sides to help them reach an agreement on the issues they disagree about. The mediator does not make any decisions or rulings like a Judge. Instead, the mediator asks questions.  The mediator helps the parties look at things differently and helps them focus on solutions.

Mediation is almost always successful.  It sounds like a very simple process, but there are special reasons why it works.  Here are some of them.

1.  Neutral Expert.  The mediator does not represent or work for one side or the other.  The mediator seems to have more credibility with both parties because the mediator is neutral and has special training to gain skills needed to help people compromise and reach agreements with adversaries.

2.  Quicker Answers.  One reason why mediation can be successful is that it speeds up the negotiation process. Either the parties are all in direct communication in the same room or the mediator goes back and forth between separate rooms. Either way, the negotiations go much faster than discussions between attorneys in their own offices in different locations. It is much easier to keep the discussion going when there's little or no delay in waiting for a response.

3.  Focus. Mediations are usually limited to a certain amount of time.  Here, most mediations are for a day or a half day.  As time passes, momentum seems to increase. When people realize they are running out of time, they often get more agreeable and are willing to compromise.  Having the time limits does motivate people to get serious about settling.

4.  Informality.  Mediations are usually very informal.  Most family law mediations in Texas are done with the parties in separate rooms.  We don't follow the strict rules of evidence or procedure that are used in court. The informality allows the participants to be more comfortable and maybe more agreeable.

5.  Controlled by the parties.  There's no agreement unless both sides agree and accept the terms.  The parties can create unique solutions and have results very different from what would have probably happened in court.  The ability to fashion their own terms of agreement is one of the most important reasons why the process works. For most people, that is greatly preferred to just turning everything over to a Judge who doesn't know or care about either party.

These reasons explain part of the basis for mediation being so successful.  If  you have a family law case, you should plan for and look forward to your mediation!

Collaborative Law Compared to Mediation: Which is Better?

Mediation.  Both Collaborative Law and mediation are dispute resolution processes.  Mediation is commonly used in divorce litigation and in other contexts.  I am a mediator and I strongly believe in the value of mediation.  It is great for settling litigated cases of all types.  Almost every divorce case, and most other family law cases in Tarrant County go to mediation before the Judge will consider letting them go to trial, and almost all will settle in mediation.

Collaboration.  Collaborative Law is a great process for settling divorces, but it approaches settlement entirely differently.  While mediation occurs late in the process, often just before a trial date, Collaboration begins at the start of the case.  There are a series of relatively short meetings in Collaborative, rather than one big day of mediation.

There are some other significant differences between the two processes.  Here are some to consider.

1.  Mediation relies on a sole mediation usually, while Collaborative Law utilizes a team approach with a neutral therapist and a neutral financial advisor.  In addition, in Collaborative cases, the attorneys commit to a different role, working together to make sure no one is taken advantage of, than they follow in mediation.

2.  There are essentially different goals.  In mediation, the bargaining often involves staking out extreme starting positions so the parties can move to an acceptable middle ground.  In Collaborative, the parties explain their goals and needs up front and then both sides commit to helping the parties each meet their goals.

3.  In Collaborative, the parties freely share information; in mediation, the parties generally get their information through Discovery and often use motions and hearings to get information.

4.  In Collaborative Law, the parties agree at the beginning to not take advantage of mistakes.  In Mediation, that's not the case.  The parties have to look out for themselves and be as careful as they can be. Mistakes happen in litigation and mediation and it's too bad.

5.  In Collaborative, single, neutral experts are routinely used.  That only happens occasionally in litigation and mediation. The parties work together with their experts in Collaborative.

What all of this means is that Collaborative Law is a safer, more flexible process that is tuned to the needs of both parties.  If you are using litigation for a divorce, get to mediation as soon as possible so you can get the case settled.  If you are just starting on your divorce, look seriously at using Collaborative Law for a better process and a better result.

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!

5 Tips for Successful Divorce Mediation

If you are getting a divorce and are getting ready to try to settle the case, chances are you are about to go to mediation.  In Texas, mediation usually involves both parties and their attorneys attending a single session of mediation, although it may be for a half day or a full day.  No matter the length of time set aside, here are some helpful ideas for preparing to attend mediation.

1.  Preparation:  Each party should meet with his/her attorney and go over the rules for mediation and how the process works.  It's not rocket science, but you will probably be more comfortable if you know the process ahead of time.  In addition, each side should have a current Inventory of assets and liabilities with supporting documents.  It also helps to put yourself in the other party's position and try to understand their motivations and objectives.

2.  Plan:  It really helps if your know where you want to end up.  You should figure out an appropriate opening position and plan how you can reach the preferred result.  Try to think of alternatives you can offer.  Be open to changing your plan, but you'll have a better chance of getting a good result if you plan your path.

3.  Don't assume:  It's easy to assume things will happen a certain way and it's easy to assume the law will do certain things, but those assumptions may not be accurate.  It's better to  spell out everything and don't rely on shortcuts.  Be precise and complete so there's nothing left to negotiate later.  Don't stop with an incomplete agreement.  Don't assume that everyone will be cooperative later just because they are at the end of mediation.  Go ahead and invest the time to decide all necessary details while everyone is getting along, even if you are tired.

4.  Read it all:  Read the entire agreement and make sure you understand it before you sign it.   Don't trust that everything is written correctly just because it was discussed for a long time.  Read it and think about how problems could arise.  Think the worst.  Expect difficulties and think about how they might play out under the agreement.

5.  Don't sign until you're sure:  Remember, once everyone signs, there's no undoing it!  There is no cure for buyer's remorse once the document is signed.

Mediation is a great way to resolve disputes.  Please invest time and take it seriously.

Tuesday Tips: How an Attorney Helps in Mediation

Mediation is a great process for resolving disputes. I'm not neutral on the topic because I am also a mediator, and I have been promoting mediation for over 20 years.  It's a peaceful way to resolve cases and the parties usually come out with agreements they are satisfied with. 

One of the reasons why mediation can work is that the mediator is strictly neutral.  The mediator must avoid taking sides, but that also limits the amount of help a mediator can provide to a party in mediation.  One of the mediator's chief  roles is to keep the parties talking. The mediator is not there to suggest solutions.  Those come from the parties or their attorneys.

I have participated in mediations where there were attorneys for both parties, where neither party had an attorney and where only one party had an attorney.  Generally, the best results come where both parties have attorneys.  The most difficult cases are usually the ones where one party has an attorney and the other party does not.  In that situation, the represented side has advantages in knowledge and skill in negotiating (unless the attorney does a poor job).

How does an attorney help in mediation?

• The attorney can understand the issues and the law.  Sometimes, unrepresented parties want to argue about non-issues or may want to do something that is impossible to do.  An attorney can help a client understand what issues need to be addressed and what possible solutions are.  If a client wants to do something that can't be done, the attorney can present some alternatives.
• An attorney makes sure issues aren't overlooked.  A party may be unaware of some issues and they might not get discussed if there's no attorney on the case.
• Unlike a mediator, the attorney is not neutral.  An attorney can tell the party that something won't work or is a bad idea.  An attorney can suggest better ways to do things.
• An experienced attorney is generally an experienced negotiator.  (From  my perspective, an attorney-mediator is an even better mediator.)  Mediation is so ingrained in Family Law now, attorneys have to learn and practice negotiation skills all the time.  Having an experienced negotiator can lead to a smoother process and better results. Knowing when and how to bring up some issues can make a huge difference.

One of the smartest moves you can make is to hire an attorney before you go to mediation. If you are not yet represented and are facing mediation, do yourself a favor and find an experienced negotiator-attorney to help you. You will appreciate the help.

7 Easy Tips for Successful Divorce Mediation

Here in North Texas, if you have a contested divorce or other family law issue, you will almost certainly be required to go to mediation before you go to a trial.  The main reason for that is that most cases (about 90%) will settle in mediation and that saves time for the courts.

If you get a divorce in Fort Worth/Tarrant County, you should expect to go to mediation.  Your divorce lawyer will attend with you.  Most attorneys have done a number of mediations and can easily explain what to expect and how to prepare.  In case you have concerns about the process and want some additional information, here are some tips for making the most of your mediation experience.

1.     Use your mediator to gain a different perspective.  The mediator is neutral and doesn't represent you or your spouse.  The mediator undoubtedly has a lot of experience in mediation and in family law.  Feel free to ask questions of the mediator.  Be sure to listen to suggestions and consider any questions or criticisms raised by the mediator.  You can get some new and different approaches from a mediator.  Having a three-way conversation with your attorney and your mediator can open up your mind to new ideas.

2.     Aim for solutions, not winning.  You may have already figured out that there are no real winners in litigation.  Decisions, deals and compromises are made, but there's a cost to everything.  That applies to both sides.  Stopping the fighting can feel like a win.  Don't keep score, just try to find a solution that works for everyone.

3.     Be flexible.  Don't come locked in to a specific plan.  I had a 5 minute mediation that ended because the wife insisted that she would only accept 80% of all the assets.  The husband obviously wouldn't agree.  The case was tried later (about $50,000 in attorneys fees later).  The judge gave the wife 60%, which was what the husband offered at mediation.  Unless you just want to continue to burn money on attorney fees, be willing to look at new and different solutions.  You can't be forced into agreement, but you can  usually find something you like.

4.      Listen.  You should pay attention and respectfully consider what your spouse says.  There is time to think about what the other side is saying.  Your attorney will probably have some suggestions, and the mediator will have some comments and questions about possible settlement terms.  Take your time.

5.     Come prepared.  Bring all the relevant records.  Get updates.  Have a spreadsheet with values.  Think about the issues in advance and consider different ways to solve the problems.  If you need to gather more information or documents, do so ahead of time.  If you need to talk with someone, go ahead and do it before the mediation.

6.     Don't try to discuss the difficult issues with your spouse in advance. Generally, you are in this situation because you can't reach agreements.  Sometimes, preliminary discussions just make the situation worse.  People start to think there's no hope of reaching a settlement because they couldn't do it on their own without the mediators and attorneys.  You can make things much worse by trying to save time and money by negotiating on your own.

7.    Remember to relax.  This is a slow process which has time for reflection.  Don't be in a rush.  There will be some down time, but I can tell you the mediator is using the time for your benefit.  Take it easy. You don't have to make instant decisions. You can think about proposals and carefully look into new ideas.  This is a lot less stressful than being in court.

Mediation is a great and efficient process for settling divorces.  Divorce courts will almost always order you to attend mediation, so plan on it and take advantage of the opportunity to reach an acceptable agreement.

Why You Should Use Mediation

Mediation is a common process used in the Family Courts system in Texas.  It involves having a neutral third party meet with the two sides and their attorneys.  In North Texas, we use mediation in most Family Law issues.  Here's why.

1.  It's effective.  Probably close to 90-95% of cases mediate will settle.  That means that the parties finally figured out a way to compromise and resolve a case before trial.  Mediation facilitates that.

2.  Mediation saves time and money.  It is much quicker and cheaper than going to trial.  Normally, mediation will take place weeks or months before a trial date.  It is much easier to find a good mediator who has time available than it is to find an open setting date on a court's docket.  Mediation also normally takes less preparation than a trial, so that saves money as well.

3.  You and your spouse (or other party) control the outcome.  Most people find that preferable to letting the judge make the decision.  A judge's decision usually makes both parties unhappy.  Your choice is to make your own decision or turn it over to the judge who doesn't know you and probably doesn't care about you.

4.  Most local judges require it.  Because the court dockets are so crowded, most judges require the parties to go to mediation before they can go to trial.  Sometimes, judges want mediation even before a trial date is set.  The reasons:  mediation works and it saves time and money.  Pretty simple.

5.  Mediation is a safe, private and peaceful process.  The discussions are confidential.  A mediator manages the process.  In North Texas, most of the time, the parties are not in the same room.  Peaceful solutions can be found in the mediation process.

Why mediate?  Judges don't have time to hear everything, and the process produces good results.  It's not 100% effective, but it generally beats going to trial.

What to Expect in Mediation

This post is a very broad look at mediation as it is practiced in Texas, specifically in Tarrant County, Texas.  Please don't assume that my comments accurately describe mediation as it is practiced in other states.

1.  Who is the mediator?  The attorneys in the case will normally choose the mediator, although the judge in the case might make the decision.  They consider mediators they have had success with, ones with personalities compatible with the parties or ones with special knowledge or experience with the issues that will come up.  Most often, the mediators are local attorneys.  Sometimes they are retired judges.  In some cases, two mediators are used.   Mediators are specially trained in mediation and family law.  They normally have strong communication skills and are very good listeners.

2.  What is the format?  In Texas, most cases  use the caucus system which means that each side is in a separate room and the two sides don't usually come into contact with each other during the mediation.  Each side has their own attorney who actively participates in the process.  In other states, the mediation takes place in joint sessions and attorneys don't participate in some areas.  Mediators can work under either system.  In the beginning, the mediator introduces himself or herself to the parties and gets some general information.  The mediator asks one or both sides for opening offers which are then conveyed to the other side.  The mediator goes back and forth, meeting with the parties, asking questions and keeping the discussion moving.  Part of the mediator's job is to get the parties to consider other points of view.  That's helpful in breaking through impasses.  After many trips back and forth, the mediator can usually help the parties reach agreements.

3.  How do you know what to ask for?  It's a good idea to spend time prior to the start of mediation in figuring out what you want to end up with.  Once you are clear on what you want, then you can come up with some opening and secondary positions to use to start the process and keep it moving.  Equally important is to think about the motivations and interests of the other side.  If you can figure out what they are likely to be aiming for, you can plan your moves to maybe achieve both your and their objectives.  Maybe you can come up with some trade-offs.  Planning ahead will make it easier to come up with ideas that can work.

4.  What should be your strategy?  Keep your goals in mind.  Leave yourself room to compromise.  You should never start off requesting your best result.  No matter how logical or reasonable you think it is, the other side is not going to accept your opening offer.  Some people take an almost opposite approach, which is also usually a bad idea:  start off with the toughest issues to test the other side and find out if they are willing to compromise.  It's usually better to start with some easier issues and create momentum in coming to small agreements.  That can lead to bigger agreements.  Special warning:  Don't expect logic or rationality to plan much of a role in settling a family law case.

5.  Is the result binding?  Yes, if it's properly prepared and signed.  It must contain special wording saying that the agreement is binding and irrevocable.  With that, courts ill enforce mediated settlement agreements.  Be sure you really approve of all the terms before you sign, because there's no backing out or changing your mind.

Be sure to talk with your attorney and prepare ahead of time.  The attorney can answer any questions you have about how mediation works.  You should go in expecting to be successful!

How to Prepare for Mediation

Once the decision has been made to go to mediation, each side and their attorney should prepare.  Some attorneys spend a good amount of time getting ready and others spend little or no time.  The better practice is for the client and the attorney to put in time preparing since there is so much at stake.  The opportunity to work out a favorable settlement should not be squandered.

So, what can you do to prepare?  Here are some tips for the attorney and party to meet and work on.

• Identify the important issues.  Hopefully, the attorney already knows what the goals, needs and interests of the client are.  Sometimes, however, a goal may change in the course of the case.  For example, at the beginning, a party may want revenge or to punish the other party (not necessarily a course of action I would endorse, by the way).  After time passes, sometimes the anger cools and the party decides he or she just wants to get the case over with.  It is actually very common for goals and needs to change. A client should tell the attorney about any changes of attitude or plans.

• Figure out the other side's goals, needs and motivations.  You can put together a series of positions you might be able to take to compromise and come to an agreement.  You probably need to build in room to make some concessions so the other side will feel like he or she has won something.

• Gather needed paperwork.  Find out what paperwork you may need and then have it ready for the mediation.  It usually helps to have updated print-outs of all financial accounts so you can work with current and accurate numbers.  Your attorney can tell you what you need.

• Adjust your attitude.  Don't dwell on emotional issues, especially anger.  Think of the negotiations as a business deal.  Don't let personalities into the mix.  You can make a better deal if you can stay calm and rational during the mediation session.  Think of the advantages of getting the dispute resolved and being able to move on with your life.

• Ask questions.  Your attorney has probably done lots of mediations and may not explain every detail or may assume that you know or understand something that is confusing or foreign to you.  Take the time to ask questions.  Your attorney wants to help you, so help yourself by seeking clarity for you and your attorney.

Communication with your attorney before and during the mediation session will be key to you being comfortable, prepared and successful.  Good luck!

 

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.

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.

Do You Need a Lawyer for Mediation?

The Jacksonville Divorce Lawyer Blog recently asked this question in the context of a Florida divorce. Their answer was the same as ours: legally, you aren't required to have an attorney for mediation, but you really should have one with you. As they pointed out, there are several important functions an attorney will carry out for you. Here are some of their ideas, with some of mine, for what an attorney brings to mediation:

Give you an overview of the process. There are different ways to conduct a mediation and a Tarrant County divorce lawyer can tell you how mediation is normally practiced here. The process may be followed a little differently in other areas of the state.

Help you select an appropriate mediator. Just like everyone else, mediators bring different experience, knowledge and personalities to the process. To put it another way, "one size doesn't fit all". It helps to have an experienced attorney who knows the mediators in Tarrant County who can help you choose the best mediator for your case. That decision alone can have a dramatic effect on your case.

Help you create and understand your options. Part of the mediation process is developing and evaluating options for settlement. An experienced family lawyer can help you create and select appropriate solutions.

Be a legal advisor. One of the primary roles of your attorney is to explain the law to you and answer any questions you have about how the law applies to your case.

Help you evaluate the offers on the table. Your attorney will ultimately have to give you advice, based on the attorney's knowledge and experience, about the advantages and disadvantages of any offers of settlement that you make or receive. The decision on whether to make or accept an offer always belongs to the client, but it's a good idea to consider the advice of your attorney. Lawyers typically look for what can go wrong with a deal, and that's a good thing to listen to when you may be anxious to settle.

Thus, while you can technically go to mediation without an attorney, you are better off having an experienced Tarrant County attorney to help you prepare and then to go through the process with you.

Why Running To Court And Refusing Divorce Mediation Is A Bad Idea

C. Sean Stephens had an excellent post this week in his Collaborative Divorce Northwest Blog about how the strategy of rushing into court to get a ruling on issues such as custody, possession schedules, support, etc. may be ill-advised. Not only is this blog one of the few dealing primarily with Collaborative Law issues, but it is always interesting and well written. This post gives the perfect example of how an attorney can misread a case, with bad results for their client, when a settlement process (here, mediation) before the hearing could have provided for an acceptable arrangement for both parties. Here's what he had to say:

"Sometimes negative examples drive home the benefits of collaborative practice the most. At Stephens Margolin P.C. we help clients with both traditional litigation cases and collaborative cases. As an Oregon lawyer practicing only family law, I frequently borrow from my collaborative law skills when working on traditional cases. The traditional side of our practice frequently reminds me of the benefits of collaborative law and the flaws in traditional practice. In our traditional cases, we usually attempt a four way style meeting and mediation prior to entering a courtroom.

"I recently made an appearance in a county which allows for hearings on temporary custody and parenting time before the parties mediate. The opposing attorney had filed for temporary custody without asking for mediation. I asked the other lawyer to mediate to see what we could work out prior to using the court’s time, but they refused. I would have been happy to have a four way meeting in our conference room and talk about some creative solutions, but they refused. Rather than mediate or negotiate, a hearing was held at the other lawyer’s insistence. The result was substantially worse for the moving party than they expected. Rather than a cooperative solution being reached voluntarily, the court imposed a decision on the parties that was harmful to the moving party.

"Refusing mediation or a face to face meeting was an enormous strategic mistake for the other lawyer. A more collaborative approach would have left the other lawyer with a happier client vs. a miserable client, and a better outcome."

Here in Tarrant County, we rarely do mediation before a temporary hearing, although it is done in some cases. (We tend to rely on mediation more for final orders.) There certainly can be a benefit to trying mediation before going to court any time. Even without mediation, it's usually a good idea to make every effort to come to an agreement before you go to court.

Sometimes, however, a party or attorney will come to believe that the facts of the case are all on their side and that they shouldn't waste time negotiating. I consider that sort of an old fashioned attitude. It's great to be confident, but you really lose control of the case when you turn it over to a judge to make a decision. It's always a gamble. Sometimes it pays off, but sometimes it doesn't. With high expectations of a favorable result, it can be devastating to a party if the judge picks up on something unexpectedly and rules the "wrong way"!

Sean is a Collaborative lawyer and like many Collaborative lawyers in Texas, he tends to use a Collaborative approach even in non-Collaborative cases. Usually, that is an effective approach. Parties should never approach a court hearing overconfident, because they are likely to be disappointed. A lot of heartache and anger can be avoided if the parties and attorneys will make a genuine effort to settle before they take a chance in court.

11 Tips for Preparing for Mediation

As William Wilson recently noted in his Indiana Family Law Blog, spouses often spend more time getting ready for a barbecue than they do getting ready for mediation. From my experience, I have to agree. While they are usually cheaper than going to trial, mediations involve a significant financial investment by each side, but the upside is that about 80-90% of the time, around here, a case settles in mediation. (Keep in mind that in baseball, the greatest hitters connect only 3 times out of 10.) In spite of all that potential for success in mediation, there seems to be little preparation in many cases.

What can be done to improve the odds of success or get better settlements? Here are some ideas:

• Clients should really become familiar with how mediation is practiced in their area. In Texas, we most often use the caucus method with the parties being kept in different rooms and the mediator moving back and forth between rooms. We also have attorneys present in virtually every mediation. In many other places, the parties stay in the same room throughout the process and often don't use attorneys. Both ways can be successful, but the parties should know ahead of time about the style they will encounter. Many clients have a lot of anxiety about whether they will be in the same room with their spouse. If they will, they need to be prepared.

• The issues need to be clearly identified and thought out in advance. The attorney should help the party be able to state their positions concisely. Sometimes it helps to have an extensive discussion about goals so the client and attorney both know what their objectives are.

• The attorney needs to make sure that they have all the information they need. That includes updates with current values and balances on financial records, as well as any records regarding the children. Telling the mediator that you can get certain information later, or that you left the records at home, just won't cut it. The information needs to be present, current and organized.

• Make sure the mediator gets the pleadings and any relevant information in advance so that he or she can become somewhat familiar with the facts and issues of the case. That will save valuable time for negotiations while everyone is together.

• It's helpful to prepare charts and summaries to help manage voluminous information. Having a computer and spreadsheets can also be helpful.

• Have copies of documents and paperwork for you, the other side and the mediator. It's sometimes helpful for everyone to be looking at the same records at the same time.

• Think about the best alternative to a negotiated agreement (BATNA). If you can't reach an agreement in mediation, what is the best realistic outcome for you if you go to court? Is it worth taking the risk?

• Think about the worst alternative to a negotiated agreement (WATNA). If you can't reach an agreement in mediation, what is the worst realistic outcome for you? Is it worth taking the risk?

• Spend time in advance to brainstorm possible solutions that you might propose in negotiations.

• Try to anticipate the other party's issues and possible solutions. Plan out how to respond to them. Be prepared to agree to some issues and consider how to try to persuade them to change or trade out on some of the other positions. It often helps to make some concessions to the other side so they can feel like they are winning. Figure out what issues you can fight for and then give in on.

• Keep in mind the many benefits you can get by settling, especially compared to the cost, time and stress involved in going to trial.

Following these tips should increase your chances of success in mediation and improve the quality of the agreements you can reach. An investment of a small amount of time prior to the mediation can bring big benefits, and none of these actions are difficult. What are you waiting for?

Why Does Mediation Work?

Mediation is a settlement process in which two parties meet with a neutral third party (the mediator) to resolve issues in a private meeting or meetings. In Texas, the most common type of mediation is the caucus method which usually consists of one session (sometimes two), with each party having an attorney present and the sides usually in separate rooms. The mediator shuffles back and forth between rooms, conveying offers, questions and suggestions. The parties rarely see each other in the caucus approach. In other states, there may or may not be attorneys involved and the parties usually meet and discuss the issues face-to-face in mediation sessions.

Mediation began to be widely utilized in Texas to help settle litigation in the mid- to late-1980s. Since then, it has become very popular, especially with judges. It has proven effective, reasonably priced and safe for the parties. Nevertheless, I still have clients express doubts and frustration when they are ordered to go to mediation before they can go to final trial. They sincerely believe that there is no hope of settlement, usually because the other party is stubborn, crazy, stupid, angry, unrealistic, etc. I always explain (after mentioning that we have no choice if it is ordered by a court) that I have had a large number of "impossible" cases settle through the use of mediation. Let me briefly explain why mediation works.

1. Mediation brings into a dispute a neutral third party with an objective approach to the case whose purpose is to get an agreement. Whatever the mediator does is seen as an effort to reach an acceptable agreement, not to advance the interests of one party at the expense of the other party. Because of the neutrality, a mediator can make tough suggestions and criticisms which will be heard very differently than they would be if made by the opposing attorney. The mediator can also make statements that a party's attorney should (and may want to) make, but which could undermine the client's faith in his or her attorney's commitment to the client's side. It is a way for a party to receive important information, even if it is not what the party wants to hear.

2. A good mediator can de-personalize the negotiations. Again, the neutrality is helpful. A mediator will usually emphasize the value of reaching an agreement outside of court and will try to shape the sessions into more of a business decision rather than something more personal.

3. The mediator usually helps each party understand the range of options, including the best alternative to a negotiated agreement. Often in a divorce, a party starts out with a set of ideas of what he or she wants and the party is unwilling or unable to conceive of other options or any reasons to consider other options. It is difficult for the attorney for such a party to bring up other options in some cases where the party is emotionally committed to a particular outcome. Because of the neutral role of the mediator, it is possible to explain and explore other options. A mediator can also help a party come up with new ideas by brainstorming with the party.

4. An important factor for the success of mediation is that it carries a sense of finality, a feeling that the end of a nightmare may be in sight. In Texas, mediation usually occurs fairly late in the process and after information is exchanged between the parties in "Discovery". The parties are often really ready to end the litigation. One of the factors that often comes into play is that parties become more willing to compromise if they see the reward of wrapping up the divorce.

5. On a related point, when mediation occurs late in the litigation process, a settlement may be achieved because the parties may be worn down or worn out from fighting and arguing. They may be spent emotionally and so is their money. They just are not up to fighting as much as they were originally. Sometimes, they have already collected their pound of flesh and they are ready to end the divorce.

6. Mediation is usually cheaper than a trial and in many areas is a required step before trial. Stable and reasonable parties (there actually are quite a few in the world) recognize the savings they can make by compromising in mediation instead of going to trial.

7. The mediator can play devil's advocate for both parties and educate each party about possible problems with his/her approach. Creating a little uncertainty, or reality, can make the parties more open to adjusting their demands, positions and solutions. Sometimes, a party hears a contrary view for the first time from the mediator since some attorneys are uncomfortable or unwilling to disagree with their clients. Or a party may have just ignored differing opinions or suggestions.

Mediation creates an opportunity for parties to become educated about a number of things that impact of their willingness and ability to settle a case. Experience shows that amazing results can occur with a skilled mediator, even in the most difficult cases. Every litigant should strongly consider, and even look forward to, getting into mediation so they can get the right result that is acceptable to both parties, work in a less stressful, private setting and save time and money.

7 Roadblocks to Successful Mediation

Mediation is a very popular and widespread process used to resolve disputes, especially in divorce cases. In many places in Texas and probably most other states, mediation is virtually a requirement before a case can go to trial. The reason is obvious -- it works! My observation is that mediated cases settle about 90% of the time, or more.

For mediation to be successful, it takes a good, well-trained mediator. In Texas, we normally have attorneys present and participating with the parties in the mediation; some other states often have the parties attend mediation without attorneys. Both systems obviously can be effective. Success, however, is not guaranteed and should not be taken for granted. Here are seven problems that can prevent a successful outcome from mediation.

1. Lack of preparation by one or both sides. The parties need to have all the information and records at hand so they can make intelligent decisions. It's also very helpful for both parties to have thought through their personal goals, needs and interests so they know what they should try to accomplish in the negotiations.

2. Unrealistic expectations. If one party has goals or ideas that are very unrealistic, agreement would be unlikely. It is normal for the parties to disagree about things, but sometimes there is no way to accomplish what one of the parties wants. An attorney should work with the client to help them reasonably define and describe what they want to end up with. If a party demands 80% of all the assets because the spouse has had an affair or drank too much or abandoned the family, usually the case is very unlikely to settle. As the Rolling Stones said, "You can't always get what you want." The parties need to be realistic and keep in mind the costs of not settling.

3. Lack of commitment by a party. If one party or both don't take the process seriously or don't want to settle, there won't be an agreement. Both parties need to see and feel the advantages to themselves from a settlement. Without commitment, the parties won't stay in the compromise mode long enough to settle. They can easily become discouraged if there is not a quick, painless settlement.

4. Inability of a party to make a decision. I have seen situations where we have waited two hours or more for the other party to respond to a changed settlement proposal that wasn't particularly complex. Some people don't handle stress well and some don't like to make quick decisions. The parties should learn in advance how the mediation process works and how decisions are made. They need to learn to approach the process as if it were an impersonal business deal. Participants should expect to face choices and they need to understand that they probably won't be happy with everything that happens at mediation. Even highly educated people used to making tough decisions affecting others sometimes have hard times making decisions in mediation.

5. Positional bargaining. People who begin negotiations without clearly defining their goals and needs will usually begin by staking out a territory or percentage as a starting point and leave themselves room to compromise. Sometimes, both parties figure out a middle ground for a target and figuratively both take ten paces backward before negotiating. Some people want a percentage of the property, regardless of what their needs are. For example, many husbands will insist on a 50-50 split and some wives will choose a starting point of 70% or 65% of the assets, when it may be that certain assets would be preferable for one party, such as cash in the bank (with no tax consequences) versus funds in a retirement plan (with penalties for early withdrawal plus income taxes for the amount paid). Positional bargaining can make for easier negotiations, but the results may not be very helpful to either party.

6. A mentally ill participant. There are, of course, varying degrees of impairment from mental illnesses. Medication and counseling are often helpful for a patient. Sometimes having a close family member or friend present during the mediation can help the party be in a frame of mind to negotiate effectively. Without extra support and/or meds, a mentally ill party can scuttle the effort to settle.

7. A mediator perceived as biased for one side. Unless both parties have confidence in the quality and neutrality of the mediator, it is unlikely that the mediation will be successful. Some parties don't trust a mediator who is a male or one who is a female. The location of the mediation or the mediator's office may produce distrust by a party. If the mediator is seen as a friend of the other attorney or party, the mediator will probably not be acceptable. Attorneys should make sure that the mediator is someone who will be acceptable to both parties.

There are other potential pitfalls for mediation, but these are some of the major ones. If you are planning to go to mediation, you should work diligently in advance to be prepared, committed and ready to decide. Keep an open mind throughout the process so you have the best chance for success.