It is undisputed that reaching an amicable agreement is better for families, children (and checkbooks) than a contested trial before a disinterested judge or jury. For the most part, judges strongly encourage the parties in family law matters to attempt settlement. The most commonly used form of dispute resolution is mediation. In many East Texas counties, judges require mediation before they will hear a contested case.
What exactly is mediation?
Mediation is a method of resolving disputes frequently utilized in family law matters. A mediator, usually an attorney who practices family law in the same jurisdiction as your case, conducts a settlement conference with you, the opposing party, and your attorneys. Due to the sensitive nature of family law litigation, many mediators will not negotiate with the parties face to face, but instead will divide them into “caucuses” in separate rooms. The mediator will go back and forth between the two sides taking settlement offers.
What are the mediation rules & procedures?
A mediator is not a judge and cannot “decide” your case. The mediator will encourage each party to settle and discuss each disputed issue with you. He or she may give an opinion on the likelihood of “winning” on a particular issue before the judge or jury in the event the matter is tried before the Court. If the mediator does not think you will prevail, he/she will encourage you to compromise. Likewise, the mediator will do the same with the opposing party. If you do not reach an agreement, you still have the right to go to court. The mediator will not make a decision for you or “rule” on your case.
Mediators cannot disclose confidential information to the other side and cannot be compelled to testify if the case does not settle. This “safe haven” rule encourages parties to be completely honest with the mediator and to tell him the reasons for taking a particular position. Your attorney will be with you to answer questions and advise you on the effects of compromise or standing your ground on a particular point.
What are the advantages of mediation?
Judges are trained to listen to both sides; however, they can never be as personally invested in your children or your property as you are. Mediation allows the parties to “customize” an agreement by coming up with creative solutions in the best interest of all members of the family.
For example, the family code contains a “standard possession order” that was drafted by our legislature that specifies the days and times the noncustodial parent will have with the child. You likely already know it as the first, third and fifth weekends of every month with special provisions for holidays and summer. Judges are required to presume these time periods are in the best interest of the children. Without question, each family relationship is different and it would be impossible for the legislature to come up with a customized formula for sharing time between parents and children in every case. Mediation allows parents to negotiate a different agreement than “standard”. It allows parents to consider the parents’ individual work schedules, as well as the child’s age and their activities in determining the amount of time spent with each parent. If the child is very young, a visitation plan can be entered that increases the amount of time with the non-primary parent as the child gets older.
The same is true of child support. The legislature has enacted laws governing child support payments. Courts are required to adhere to the percentages of income contained in the family code in calculating child support unless special facts are presented to support variation from the guidelines. In mediation however, parents can negotiate different amounts, more or less than that contained in the family code or they can allocate the responsibility for paying certain expenses of the children directly “as child support”. Your attorney will advise you on drafting and enforceability concerns for these custom provisions. In mediation, the parties are in control of the terms instead of being limited by the legislative guidelines contained in the family code.
Do many cases settle in mediation?
The “discovery” process involves exchanging between parties all the information necessary for presenting the case to the court. After discovery is completed, the disputed issues are known to the attorneys and their clients. Mediation prior to the completion of discovery is not as beneficial because the participants may not know the evidence the other party has to support their position. Mediation has a success rate of about 95% when conducted after discovery has concluded.
Family law mediation is a very attractive alternative to trial because of the high success rate, the ability to customize the terms of your order, and the financial savings.