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Mediation is a process where you and your spouse select an independent, third-party mediator to help facilitate settlement discussions. Typically, mediation takes place at the mediator’s office. You and your attorney are placed in one room while your spouse and their attorney go to another. From there, the mediator goes back and forth between rooms to convey settlement offers. Additionally, the mediator provides context, and information and generally helps facilitate discussion. Mediators are often practicing family law attorneys or former family court judges.
In a successful mediation, the mediator will write down any settled issues within a mediated settlement agreement (MSA). The MSA contains all issues that were successfully settled in your case. You and your spouse both review and sign the MSA before copies are provided to your attorneys. From there, an attorney will draft orders based on what was settled. Any remaining issues will be determined in either a temporary orders hearing or trial.
Why is mediation important?
Mediation is critical within a family law case. Families who take advantage of mediation are more likely to settle their case. If you are concerned with a trial or hearing, then mediation may be just what your family needs to avoid a courtroom. Going into a courtroom for a hearing or trial means several things. First, it takes the power from you and your spouse to make decisions in your own lives. Many people think about the courtroom as an intimidating experience. It may be that, as well. However, primarily going to court means putting the decision-making authority in the hands of a judge. No matter how you and your spouse disagree at the moment the two of you know your circumstances better than a judge does.
Next, going to court costs money. Family law attorneys bill by the hour. This means that for every hour worked in your case, your attorney will be billing you. The reality of going to court is that it takes time to go to court. In a family law case, time equals money. The more time you spend in the courtroom the more you will need to pay your attorney. On top of that, it can potentially mean less time for you at work or in other income-producing endeavors. Once you understand the expense of the courtroom mediation seems like a much preferable option.
Finally, mediation is important because it offers you and your spouse something unique. Think about your day-to-day lives and try to negotiate a settlement. While your heart may be in the right place, it is almost certainly true that you are distracted from time to time. Work, family, children, and everything in between. This is where people begin to run into issues when it comes to trying to settle their cases. With all the distractions in life carving out time to try and focus on a settlement can be a challenge.
Selecting a mediator
The process of selecting a mediator for your divorce will be different depending on whether you have an attorney. Being represented by an attorney is certainly an advantage to have in your divorce. One of the advantages of having an attorney is that the attorney should be familiar with the experienced family law mediators in your area. Note that you should aim to hire a family law attorney for your divorce. Hiring a general practice attorney is not necessarily a good idea. Not only will that attorney lack experience in family law but will be unfamiliar with the best mediators for your divorce.
Talk to your attorney early in the case about mediation. Your attorney is a great resource when it comes to determining issues regarding who to pick as a mediator. As you may imagine, different divorces may require a different type of mediator. For example, if you are dealing with a spouse who is incredibly difficult to negotiate with then you may need a mediator with a tougher attitude. On the other hand, if you have a spouse who shies away from confrontation then having a mediator who focuses on interpersonal communication would be for the best.
When you are not represented by an attorney you are at a tremendous disadvantage. While you can perform research into mediators you have no personal experience with them. Trying to arrange a consultation with the mediator’s office can be a challenge. In large part, your attorney has already performed the legwork for you. By choosing a mediator without an attorney you are relying upon reviews online and potentially word of mouth. Rather than go about selecting a mediator this way it may be better to hire an attorney to help.
What issues are negotiated in mediation
The issues that are negotiated in mediation are any that are relevant to your divorce. This means that every subject in the entire divorce will be on the table for discussion during mediation. On a general level, there are two subjects related to Texas divorces. The first is child custody. Child custody encompasses a range of subtopics such as child support, visitation, possession, and conservatorship rights. Depending upon the specific facts of your case there may be hotly contested subjects for your divorce. Your mediator must have experience guiding parents like you and matters related to child custody.
A second area of your divorce that will be relevant to mediation is Property division. Texas is a community property state. This makes our state unique when compared to other states in the country. As a result, special consideration needs to be paid to the property that you and your spouse own. Distinguishing community and separate property is an important factor in your divorce. As a result, your mediator should be experienced in helping families like yours allocate resources in a way that is equitable to all parties.
Understanding your goals is the first step toward preparing for mediation
As any person in any field will tell you, goal setting is incredibly important before embarking on a journey. Scaling the summit of a mountain is the goal of a climber. Putting the ball in the basket is a basketball player’s goal. While these goals may seem more straightforward based on the activity, coming up with goals for your divorce does not need to be a complicated endeavor. Rather, the more educated you are on the subject matter of your divorce the easier it will be to come up with goals for your case. However, it does take time and diligence to do so.
Going through a divorce means having time at a premium. All of us have limited time to begin with. I’m willing to bet that each of us has wished for more time during this week at some point. All of life’s responsibilities are still relevant during a divorce. The only difference is that you have an important legal case to handle, as well. This means taking the time to work on your case when you have the opportunity. The reason is that you do not know when additional opportunities will present themselves. So, work through your case every chance you get.
Preferably, when you are preparing for a divorce you should think about the issues that are most important to you. Goals and strategies can and should be adjusted along the course of your case. Change occurs and you need to adjust to those changes. Maintaining the same goals despite a changing landscape within the case would be foolish. However, that does not mean that you should not think about what issues matter most to you. Your children, a small business, and anything in between. These may be your starting points for goal setting in a divorce.
Organizing your case related to the community property division
Not only should you be thinking about goals for your case but you should be preparing to achieve those goals. Take, for instance, the subject of community property division. Beginning to plan for the division of your community estate means looking at the case from the perspective of the property that you own. Performing a basic inventory of your property is a sensible first step. Walking through your house and documenting the property you own may be step number one. This can be done by something as simple as photographing each room, closet, dresser drawer, and everything in between.
Next, consider a property you own that is intangible. Investments, bank accounts, retirement funds, and so forth. These are property items that may not be as on your mind every day but are critical to your future. On top of that, the house in which you live is another asset that may be divided in the divorce. Have you looked at your mortgage statement recently? How much equity do you think you and your spouse have in the house? These are long-term questions that can position you for the remainder of your life.
Finally, do not forget about debt as it pertains to your divorce case. Debt is also divisible in a divorce. A simple reality for most of us is that we have debts which need to be accounted for. This does not mean to begin to pay down debt during the divorce. Rather, make your usual payments and stay on course. Most attorneys will advise you to not pay large amounts of money towards debt during a divorce. Instead, begin to look at your credit report and determine what debts are out there for you. From there you can gauge how to divide property. How you divide your debts will likely influence how you divide your property. Having a plan for both is critical to the success of your divorce case.
Organizing your case related to child custody
The second main area of a divorce case is related to child custody matters. Child custody is a general term that refers to a range of important subjects related to your children. Let’s begin to discuss visitation and possession. Visitation and possession are two critical elements in the lives of your children. When you assess the success of a family after a divorce visitation and possession of children is a major factor. These are the subjects that determine how and when you see your children. Depending upon the needs of your children, the aptitude of the parents, and other factors these are subjects that will need to be divided up in some form or fashion. How you do so should be based on the best interest of your children.
Next, child support is frequently a topic of debate in a divorce. The responsibility of paying your spouse money during and after divorce may seem unnatural and difficult to stomach for some of you. By the same token, if you expect to be paid child support then relying upon an ex-spouse for money each month may also not seem overly preferable. Regardless of your opinion, expect child support to be a part of your family law case. Understanding how child support is calculated and how it will function in your case needs to be part of your preparation.
Finally, use the time in your divorce to think about what suits your children best. Remember that the best interests of your children may not necessarily be in your best interests. Distinguishing between these two realities can help you negotiate better and more effectively in the divorce.
Mediators do not make decisions for families
One of the misnomers that people hold regarding mediation surrounds the mediator’s specific role. While the mediator hosts the mediation session that does not mean that he or she makes decisions. This is also true of your attorney. An attorney is not there to make decisions for you and your spouse. Rather, an attorney is there to provide information and advice so that you can make better decisions for yourself.
A mediator does not represent either you or your spouse in the divorce. This is why we refer to a mediator as a third party. The mediator is a person from outside the case who has no skin in the game, so to speak. Because of this, the mediator can provide information and context in a different light than either of your attorneys. Sometimes the mediator may see the case differently than you or your attorney. At that point, the mediator can share their experience and insight into matters related to the case. Whether you accept what the mediator has to say is completely up to you. The same is true of your spouse.
After mediation, you and your spouse will determine what to settle and what not to settle. Any topic that is settled will be included in the mediated settlement agreement. On the other hand, any subject left to be determined will be the subject of a hearing or trial. A major factor to keep in mind during your mediation is that ultimate power rests with you and your spouse. The more prepared you are and the more willing you are to compromise equates to your likelihood of a settlement. A mediator simply helps to facilitate that outcome.
Final thoughts on picking mediators in Texas
The mediator in your divorce case needs to be an experienced family law mediator. Picking a general civil law mediator is a mistake. Rather, being able to rely upon the experience and expertise of a family law mediator is invaluable. Family law mediators understand the complex issues of your case and can help guide you throughout your mediation session. When working with your attorney make sure that your mediator has experience in family law. If not, then resume your search.
Make sure that you are clear with your attorney about your goals in the case. Before selecting a mediator, the attorney needs to be able to understand what your major goals are. For example, if your focus in the community property aspect of your case is a fair division of your small business then that should be a focal point. As such, the mediator you select should be someone who knows the small business division. The same point could be made, for instance, if your case involved division of military retirement assets. In that case, you would need a mediator.
Thank you for choosing to spend part of your day with us here on the blog for the Law Office of Bryan Fagan. Our experienced family law attorneys offer these blogs as a service to our community. We aim to provide our Texas neighbors with as much information as possible regarding Texas family law. From there, if you have any questions about the material you read please do not hesitate to reach out to our attorneys.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law. Before signing a document or negotiating on a subject you do not know well, contact our office. We look forward to the opportunity of serving you during an important part of your life. The Law Office of Bryan Fagan is on your side.
