Mediation is a form of alternative dispute resolution that can be used in most non-criminal cases, including disputes involving contracts, leases, small businesses, employment, child custody, and divorce. Mediation is the process by which an impartial third party (the mediator) facilitates negotiations between two or more parties to promote settlement of a pending suit or dispute. Of all alternative dispute resolution options available to courts and parties, mediation is the most common and the most popular. Mediation has become such a popular tool in settling family law disputes that, although the Texas Family Code doesn’t require mediation, some courts do require mediation prior to hearings for temporary orders or final trials as it often leads to settlements that take cases off the court’s often-overwhelmed dockets.
The parties can agree to mediate their dispute both before or after the filing of a lawsuit or one party can motion the Court to refer the case to mediation. The Texas Family Code authorizes judges to refer cases to mediation in both divorces (see Tex. Fam. Code § 6.602(a)) or suits affecting the parent-child relationship (a.k.a. SAPCRs or suits involving child custody, visitation, or child support) (see Texas Family Code § 153.0071(c)). If the case is referred to mediation, the parties are expected to attempt to negotiate in good faith but are not required to reach a settlement.
There are many benefits to mediation, including but certainly not limited to the following list:
Mediation is more cost efficient than preparing for a trial. Most people underestimate the cost of preparing for a trial before a family law court. Conducting further discovery, subpoenaing witnesses and documents, authenticating records, preparing for cross-examination and testimony, producing exhibits, and filing pre-trial motions is a costly endeavor that accrues both hard costs and expenses, as well as attorney’s fees and the fees associated with paralegals and legal assistants. If you successfully reach a settlement in mediation, you will avoid those costs and expenses.
BENEFIT: Mediation can truly end the dispute. If the parties reach an agreement in mediation, the terms of that settlement are incorporated into a document entitled a “Mediated Settlement Agreement” or MSA for short. MSA’s are binding on the parties and cannot be set aside if one party experiences buyer’s remorse the day after the mediation or anytime afterward. Instead, you can leave mediation confident that your case has been resolved.
Mediation is a confidential process. It is the public policy of the State of Texas to encourage parties to settle their disputes. As a result, communications between the parties during mediation is confidential and inadmissible at trial. For example, Mom will not be able to complain at trial that Dad was offering “X” but now at trial, he is offering “Y.” The mediator cannot be called as witness as to the communications during mediation; he or she may only be called to testify as to the results of the mediation, such as whether the parties attempted to negotiate in good faith or whether a mediated settlement agreement truly incorporates the parties’ agreement.
Mediation allows the parties to control their own outcomes. Your children and your property are likely the most important things in your life. If your case proceeds to trial, the person in the black robe will make the ultimate decision as to where your children live, what visitation each party will have, and how the house, the cars, the retirement, and the debts will be divided. Your unique family traditions or your personal sentiment towards certain pieces of property might not be incorporated into the Court’s ruling. In mediation, however, the parties can exercise some control in negotiating their wants and needs as to their children and their property.
As with anything else, there are a few disadvantages to referring a case to mediation.
Some cases just need to be tried. Mediation is a great tool for parties who are willing and able to come to the table and negotiate. However, if two parties’ desires are too far apart to meet in the middle, mediation cannot be expected to be successful. Further, if your case involves issues of serious domestic violence or legitimate concerns as to the children’s physical health or emotional wellbeing, mediation might be futile.
Some marital estates are too small to justify the expense of mediation. Although mediation in many cases is a cost-efficient alternative to trial, if your divorce doesn’t involve matters relating to children or doesn’t have many property issues, the expense of paying a mediator to help you reach an agreement might not be a justifiable expense. In some cases involving small marital estates with little community property, trial may actually be cheaper than mediation!