Q: What is mediation?
A: Conflict is a part of the human existence, and for thousands of years people have handled conflict management in various ways, with not all of them being good. For example, conflicts were resolved using violence, war, unequal bargaining position, and coercion, just to name a few. Thankfully, our society is one based on law, and conflicts are handled in the judicial system where they are resolved through a bench or jury trial. The outcome of a trial produces a winner and a loser. No one wants to be the loser, so the practice of alternative dispute resolution (ADR) is one alternative to litigation. Mediation is a form of ADR that provides parties in conflict a way to resolve their conflict without trial. In the purview of family law, mediation is an assisted negotiation where a credentialed family law mediator assists the parties and their attorneys resolve conflict. Usually, an attorney represents each party, but a party has the right under the US and Texas Constitutions to represent himself/herself. This is called pro se representation. The mediator acts as a third party neutral because s/he does not have a dog in the fight, and the mediator’s goal is to help the parties reach agreement. Mediation is also much less expensive than going to trial. While the family court judge may order the parties to attend mediation, the process is voluntary, and the parties are not required to settle their dispute at mediation if they do not wish to do so. Mediation is confidential and occurs in a structured environment where the parties can determine for themselves how to resolve their conflict. Parties may be able to resolve some or all of their issues, and seek the court’s intervention on what they cannot resolve. If the parties make a settlement agreement during mediation according to the requirements of the Texas Family Code or Civil Practice & Remedies Code, it is a legally binding agreement that is not subject to revocation.
Q: Why Should I Mediate?
A: Beyond the fact that mediation is required by all family courts in Harris County, Fort Bend County, and almost all other Texas family courts before trial, there are many other good reasons to mediate a family law dispute, whether it’s the divorce or subsequent modification regarding children’s issues such as custody and child support. First, mediation is an environment suited for managing and resolving conflict. For example, the mediator chosen by the parties and attorneys is someone who has not only been educated on dispute resolution, but dispute resolution as it occurs in the family setting. Your mediator received his/her initial training required by the State of Texas, and then received more in depth training in areas such as child development, family dynamics, family conflict, domestic violence, and the basic principles of Texas Family Law. However, mediators are not permitted to give legal advice. Second, the parties retain their power of self-determination, which means that they decide if and how their family case is settled. This dovetails into a third reason for mediation: generating creative solutions. During mediation the parties, attorneys and mediator can craft solutions better suited for the family, and this is relief that parties are unlikely to get at the courthouse where, due to the number of cases, the judge rules based on standards and moves on to another case. This is almost like wearing a one-size-fits all T-shirt. It may cover the body, but not very well. Forth, the parties have an opportunity to be heard and speak their mind. Despite being prepared by their attorneys, many family law litigants make the mistake of thinking trial is the place where they will get to tell the judge what happened, why the other spouse/parent is a bad person, why they are the injured party, and what relief they should be granted. Many litigants feel blindsided when they suddenly realize that trial is governed by the Texas Rules of Civil Procedure and Texas Rules of Evidence, which do not provide a forum for airing grievances through extemporaneous speaking. Unless the party has gone to law school or spent a lot of time working in a law office, the rules of procedure and evidence are foreign and may seem unfair. Trial is a calculated presentation of admissible evidence to the judge and/or jury through the use of documents, tangible items, and the examination of witnesses under oath. Depending upon whether the trial is to the judge (bench trial) or to the jury (jury trial), the judge and/or the jury may make decisions regarding your and your children’s life. Fifth, during mediation many people get what the truly want – an acknowledgement, mutual understanding or even an apology from the other party. While these may seem insignificant, something as small as saying “I’m sorry” can make a world of difference in conflict resolution. Sixth, mediation is infinitely less expensive than preparing for and going to trial. Depending on the circumstances of the parties, it’s not unusual for a divorce trial to cost anywhere from $35,000 on the low end, to an almost infinite dollar amount. When spouses and parents look at this reality with a clear head, most agree it would be far better to use the money spent on trial for paying off debt, saving for the future, obtaining new job skills, or saving for a child’s college education. Finally, mediation is a confidential process. This means that what is said and done at mediation (with very limited exceptions) is private. Your spouse’s attorney cannot say at trial “At mediation you told us and the mediator that you were willing to settle the case for….” In conclusion, mediation has been around for nearly as long as human conflict. Just think of the biblical references to King Solomon and other stories from the Old Testament. You may have even been a mediator of conflict without realizing it. Think of a time when a friend relayed his frustration about a conflict with a co-worker, boss, other friend or significant other. Being a third party without emotional involvement, you saw things rationally, from a different perspective and perhaps even helped your friend find a solution.
Q: Is Mediation Always Required?
A: No. There are provisions within the Texas Family Code wherein a party may object to mediation based upon a history or likelihood of domestic violence. The objection must be filed within the deadlines outlined in the code. Obviously, it does no good to put a victim within the proximity of someone who is violent, manipulative or coercive – even if the parties are in separate rooms. It likely produces an agreement subject to attack and adds unnecessary stress to at least one party’s experience. However, in rare instances very skilled mediators and attorneys have been able to hold mediations in separate locations using video conferencing to obtain resolution.
Q: How Long Does Mediation Take?
A: The amount of time varies, but mediations are typically performed in four-hour to eight-hour blocks of time. But, just as every family dispute is unique, mediation can be tailored to fit the needs of the family. After a long day of working out property division, if the parties, mediator, and their counsel cannot go 12+ hours to finalize a settlement, the parties may agree to come back to mediation and pick up where they left off. Of course, it’s best to do this the next day or as close as possible to the last session while momentum is strong and memories fresh.
Q: What Happens at Mediation?
A: A real attempt is made in mediation to make the parties feel relaxed and feel empowered as they face difficult challenges resolving their dispute, which may be very emotionally charged. The setting is usually informal and the parties can take breaks as needed. It is the responsibility of the mediator to keep the discussion and negotiation on track and focused, and also to empower the parties by letting them feel as if they have some say in the process. There are many answers that come from a mediation process that simply cannot come from litigation. The parties can improvise and make agreements that provide some give-and-take to all sides. Mediation can include some or all of the following six steps.
1. Planning. Each party needs to know beforehand the basic information that will be needed at the mediation. Some of this may come from the parties’ attorneys if they have counsel, or the information may come from the mediator. The parties need to know if counsel will represent them at meditation, or if they will go to mediation without an attorney. The mediator will usually have a comfortable space in which to have the mediation. In rare cases each side might have others who will attend the mediation other than the parties or their council. An example may be a financial planner. This is more common in collaborative mediation but can actually happen in any type. Nevertheless, the parties must check with their attorney and mediator before bringing non-parties to the mediation.
2. Mediator’s opening statement. This is a matter of choice for mediators and most often depends on the level of the dispute. The Texas Family Code states that under certain conditions, parties cannot be forced to sit at the same table face-to-face during mediation. If the parties are able and comfortable sitting together for opening statement, then that might be the style of choice. However, if you are uncomfortable being in the same room with your spouse, tell your mediator because if the parties don’t feel secure and comfortable, it does not help the dispute resolution process. The mediator will either with the parties together or in different rooms will give the opening statement. He or she will introduce the parties, their council and himself to the room(s). The mediator will go over the house rules or rules of the mediation, and how the mediation will be structured. He or she will allow the parties to give an opening statement and ask the opposing side to hear the other party’s statement without drama, or interruption. The mediator will state that he or she is a neutral in the mediation and is there to help the parties arrive at a resolution that all parties agree with. The mediator may say that the resolution that is agreed to may not be the ideal for either side, but it may in all likelihood be an agreement that the parties could not have reached in litigation. The mediator will empower the parties by telling them that it is they that will reach agreement and they who will have input in that agreement. They will decide, and not a judge or the mediator.
3. Opening remarks. After the mediator’s introduction there will be a time for all parties to give their side of the dispute. This may be a time where a party or parties may vent and give off emotion. They are at this time to give their perspective and what they are looking for from the mediation.
4. Joint discussion. Discussion may be had in both a single room and in caucus rooms, where the parties are separated from one another. Often after opening statements by the parties, there are questions that need to be asked. Hearing the other party is often difficult and it is the mediator who often acts as an interpreter to let the party hear what has been said in words or ways the party can hear and understand the opposing side. If an impasse is reached it is during the discussion with the mediator that alternatives are discussed and put forward. It is the part of the mediator to keep things focused and moving. Sometimes the mediator will put forward ideas that may indeed remove the impasse and help reach a settlement.
5. Caucuses. Caucuses are both a style of mediation and an event in conference style mediations. In either, the parties are separated and sit in different rooms. In the caucus the parties may discuss issues that they do not want the other party to be exposed to at that time. The mediator will ask if there is anything said in the caucus that the party wants to be kept confidential. If that request is made, then the information is kept confidential. The promise of confidentiality can encourage disputants to share new information about their interests and concerns.
6. Negotiation. The mediator will always be looking for points where there is agreement. He or she will formulate issues and think of ways to present them to the opposing side. It is important during this aspect of mediation to find the issues that are core to the parties. This is different from the positions the parties may have at the time of mediation.
The negotiation may be done in shuttle method with the mediator going back and forth between the rooms, or he or she may be able to do some of this work in the same room.
When negotiating it is important to remember the mediator is not there to give legal advice, but s/he may make suggestions to keep the mediation focused and moving. The mediator does hear the input from both sides and s/he may be able to keep things moving in a direction that keeps the other party from being offended and call an impasse out of frustration.
About 90% or more of disputes in mediation lead to resolution. It is important to remember that in some mediations there may not be agreement on all issues. Depending on the issue and the type of mediation there may be agreement on most or all issues. If the mediation is at an impasse on one issue or more, then that issue is litigated and the judge or jury determines a resolution. It is important to remember resolution does not mean complete happiness with the outcome. It means that the parties reached an agreement that both parties could live with, without continuing and taking the dispute to court. Most of the time the cost is a fraction of the cost of litigation. Mediation can last a few hours or a few sessions. The time between the sessions may be a day or a longer period of time. It is usually better to continue the mediation if it runs into another session as soon as possible, considering the possible need to gather more information before a final settlement may be reached. At the end of mediation where agreements are made, the mediator will prepare a document called a Mediated Settlement Agreement (MSA) based on the agreements made between the parties. In Texas, if the mediation is court ordered, the mediator will notify the judge the case either settled or it did not settle in mediation.
Q: What Are Mediation Outcomes?
A: During your session, the objective is to reach settlement as to all issues. Sometimes, despite the mediator’s best efforts, the parties are unable to resolve everything. In that case, it’s possible to settle some issues, which whittle down what must be resolved at trial. For example, the parties may agree on how to divide property and on a possession schedule for the children, but they may not agree on child support. This is still a benefit to the parties. Of course, it’s also possible that the parties are not able to agree on anything – not even that each day of the week ends in Y. When that occurs, it is called an impasse. The mediator will report to the court only that the parties attended mediation and whether a settlement was reached or not.
Q: How Do I Prepare for Mediation?
A: If an attorney represents you, s/he will do most of the preparation with your assistance and participation. Your attorney should be ready with information pertaining to the children’s needs, financial information, spreadsheets, documents pertaining to assets and liabilities, and a strategy for settlement that s/he discusses with you in depth before coming to the mediator’s office. You, as the family law litigant, should know the settlement you can live with, and when you must walk away. Also be prepared with fresh ideas that you’ve not considered previously. Neither your attorney nor the mediator should make you feel pressured to settle because mediation is a process based on self-determination. However, your mediator may play Devil’s Advocate and challenge your position in an effort to get you to see things from a different perspective. No one gets 100% of what they want at mediation. Resolution to any dispute is based on compromise by both parties, which may feel painful.
Q: We Settled at Mediation. Are We Done Yet?
A: Close, but not quite! When the parties enter into a Mediated Settlement Agreement (MSA) that is a binding contract, and both parties are entitled to have the judge enter an order based on the MSA. Most parties who settle in mediation move forward to have their attorneys draft a final order that honors the MSA. The attorney who drafts the final order provides a copy to the other side for review. Once the attorneys agree on a final version of the order, the attorneys and parties sign the order, and arrangements are made to prove up the order before the judge approval and for entry. Failure to offer and prove up a final order to the court will result in your case being dismissed. If parties are not represented by attorneys, then it is highly recommended that at least one party retain counsel to “paper” the case. If an attorney is hired for papering, that means his/her scope is limited to drafting: a final order, forms required by the state and court, and any closing documents such as deeds, powers of attorney for car titles, and qualified domestic relations orders. Of course, depending on the situation there could be additional documents. Keep in mind that if one party hires an attorney for this limited purpose, that attorney cannot represent both parties due to law and ethics rules.
Q: How Much Does Mediation Cost?
A: The cost of mediation is borne by both parties equally, absent another agreement or order from the court. Each mediator has his/her own rates, which are based upon their professional experience and length of time they’ve been a mediator. A retired family law judge, mental health professional, or a seasoned family law attorney may charge more for mediation than a lay person or a law student who just received his/her credentials. There are some mediators who may offer a discount if they do not have to provide the office and conference rooms for the mediation session. If the parties agree, mediation can take place at either attorney’s office or at a neutral location such as at a neighborhood center equipped with at least two private rooms. This may reduce the cost of mediation by a few hundred dollars. To give a ballpark estimate, mediation for a ½ day may range from $300-$600, and a full day may range from $700-$1200. Of course, if the parties go into overtime, the mediator may charge an hourly fee for each hour over the time allotment agreed upon.
Q: What If I Can’t Afford Mediation?
A: If you are on a limited income and cannot afford mediation, you may inquire to see if there are mediators in your jurisdiction who offer a sliding scale for fees. Those mediators who offer a sliding scale usually request copies of your last 2-3 tax returns to see if you qualify based on income. Absent reduced rates or a sliding scale, most counties have a domestic relations office where parties who meet the income requirements may mediate their case with little to no cost. In Harris County, Texas the office is the Domestic Relations Office located at 1310 Prairie, Houston, Texas 77002. Their website is: http://www.dro.hctx.net/.