Mediation in Texas                

Most Family Law Courts require that parties to a family dispute participate in mediation before trial.  Mediation is a forum in which an impartial person (the mediator) facilitates communication between parties to help promote reconciliation, settlement, or understanding among them.   The parties (or their attorneys) may choose a mediator, or if a lawsuit has been filed, the parties may request that the judge appoint the mediator.

A mediator is an individual, who is often an attorney, that serves as a "go-between" for the parties. Although all mediators are not attorneys, an attorney-mediator experienced in family law might be desirable in a complicated family dispute. There are mediators and organizations who will perform mediation based on the ability of the parties to pay, but generally the parties to mediation split the cost equally.

Some mediators will allow the parties to participate in mediation without attorneys, while most require that attorneys be present. Mediation may bring about one of three results:  no settlement, partial settlement or full settlement.  If an agreement is reached during mediation, a final court order is normally required, to define the rights, duties, and responsibilities of the parties, and to insure that the agreement is enforceable. If the parties are unable to reach a full  agreement, either party can then request a trial on the remaining issues, if one has not already been set by the Court.

Who are mediators? What is their training and background?

• Mediators have a variety of backgrounds including law, social service and business. They undergo a 40-hour training program in mediation techniques; family mediators also undergo specialized training in Family mediation. 
• Mediators do not take sides or give advice; their role is to help the parties talk to each other and work toward an agreement.
  

What is the difference between mediation and arbitration?

Following is a piece which will help you understand the mediation process itself.

How Mediation Really Works by Peter Lovenheim 
© Copyright Nolo Press 1996 .This article originally appeared in the Nolo News. 

The Six Stages of Mediation 

Many people think that mediation is an informal process, in which a friendly mediator chats with the disputants until they suddenly drop their hostilities and work together for the common good. In fact, mediation is a carefully designed process designed to get results. It is informal, compared to a trial or arbitration, but there are six distinct stages. 

Stage 1: Mediator's Opening Statement. 

After the disputants are seated at a table, the mediator introduces everyone, explains the goals and rules of the mediation and encourages each side to work cooperatively toward a settlement. 

Stage 2: Disputants' Opening Statements. 

Each party is invited to tell, in their own words, what the dispute is about and how it has affected them, and to present some general ideas about resolving it. While one person is speaking, the other is not allowed to interrupt. 

Stage 3: Joint Discussion. 

The mediator may try to get the parties talking directly about what was said in the opening statements. This is the time to determine what issues need to be addressed. 

Stage 4: Private Caucuses. 

Often considered the guts of mediation, the private caucus is a chance for each party to meet privately with the mediator (usually in a nearby room) to discuss the strengths and weaknesses of their positions, and new ideas for settlement. The mediator may caucus with each side just once, or several times, as needed. 

Stage 5: Joint Negotiation. 

After caucuses, the mediator may bring the parties back together to negotiate directly. 

Stage 6: Closure. 

This is the end of the mediation. If an agreement has been reached, the mediator may put its main provisions in writing as the parties listen. The mediator may ask each side to sign the written summary of agreement or suggest they take it to lawyers for review. If the parties want to, they can write up and sign a legally binding contract. 

If no agreement was reached, the mediator will review whatever progress has been made and advise everyone of their options, such as meeting again later, going to arbitration or going to court. 

Following are a few basic, frequently asked questions relating to mediation.

1)  When should mediation not be used in family disputes?

Mediation should not be used when there has been evidence of domestic violence or abuse or there is a great difference in power between the parties. For the mediation process to work there must be some degree of trust between the parties.

2)  Should I have an attorney?

It is advisable to have an attorney in a private mediation, but it is not always required. In a court-referred mediation, each party must be represented by an attorney unless they are representing themselves. Parties will be advised by the mediator to seek advice from their attorneys, and it is recommended that an attorney draft and review the final settlement agreement. 


 3)  Is mediation binding?

Mediation is not binding by itself. A properly executed settlement agreement, the outcome of a successful mediation, is binding, and clearly states near the end that it is not revocable.

4)  What are the advantages of mediation over litigation?

• Studies show that families that mediate their differences have a substantially better after-divorce relationship than families that litigate their differences. 
• Mediators use a variety of negotiating techniques to help spouses/parties reach a mutually agreeable solution to their differences. The final decisions are the parties', not the mediator's, because both have had a say in how to deal with the issues that are important to them. In divorce mediation, the couple controls how and when decisions get made, rather than attorneys and judges.
• Mediation is usually far less expensive, depending on when it is done during the case. It can save a divorcing couple a lot of money. Trials get very expensive.  If you can reach an agreement without trial, and resolve all of the issues in your case, ranging from property division, to support, to custody, you will be many dollars ahead. 
• Mediation, is usually not free. Mediators usually have rates for half-day (4 hours) and for full-day (8 hours) mediations; they usually have an additional charge for extra hours.  The rates for mediations can be as little as $300 per person for half day, all the way to $700 per person for half-day....and this cost is in addition to what you must pay for your attorney to attend the mediation with you.
• Mediation is faster. In a traditional court setting, waiting for trial can stretch your case out for many months or even years. 

5)  Is mediation confidential?

One of the advantages of mediation is that it is confidential. The emotional, and perhaps embarrassing, issues that are raised in divorce and child custody difficulties will be kept private, as opposed to a trial where all of the proceedings are part of the public record. They are also confidential, meaning that the process doesn't become part of the public record as does a court-tried divorce case. This is especially important when the mediation concerns children. The adversarial nature of a divorce trial can severely strain the ability of parents to communicate with each other and their children. Dealing with conservatorship, access and child support in mediation can often short circuit much of the bitterness. 

6)  What happens if we can't agree?

If you don't reach agreement, you can still go to court. You do not give up your right to litigate your dispute, although it can end up costing you thousands more in legal fees, and hours of frustration -- you lose control of your dispute by giving it back to the judicial system. What has occurred in mediation is confidential;  it is not admissible in court unless it could be otherwise learned through discovery, so you have the luxury of starting fresh as if the mediation had never taken place. In a court-ordered mediation, the case will return to the court for a decision by the master or judge, if the two parties cannot come to an agreement.

State Bar of Texas Alternative Dispute Resolution homepage

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