Instead of arguing your case in court, in certain circumstances – sometimes by choice, sometimes not – your case may be sent to mediation or arbitration in order to reach a legally binding agreement between the two parties.
Mediation is an alternate method to attempt to settle the issues in your case outside of the courtroom. It’s you and your lawyer, your spouse and their lawyer, and the mediator. You have your room and they have theirs. The mediator shuttles back and forth between the rooms carrying settlement proposals between the parties and adding comments, suggestions and usually years of experience as an attorney and/or a judge to the mix.
In the end, you might reach a “mediated settlement agreement.” Because it’s a negotiated agreement, it’s likely that you won’t like it, but you’ll be able to live with it.
The positives to mediation are numerous. They include the fact that the rules of evidence and procedure don’t apply. Therefore, you’re able to tell the mediator anything and everything without worrying about garnering an objection from the opposing counsel. Nothing you tell the mediator can ever come into court, so you can feel free to wheel and deal as you please. Nor can the mediator ever reveal what was said in mediation outside the confines of the mediation itself. So, what you say in mediation actually stays in mediation.
Because the mediator can, and will, listen to all you have to say, not only can it be cathartic in nature, but it allows you, with the assistance of the mediator and your attorney, to arrive at a creative and tailor-made solution to your case, and you have more than a few hours to get this done. It also allows a third party, the mediator, to see not only the strengths in your case, but also the weaknesses. Remember, the mediator’s job is to settle your case. Your lawyer is there to advocate for you and to make sure you know the law and how it applies to your case, and to evaluate the offers that you make and the offers that you receive.
If you reach a mediated settlement agreement, presuming that it meets all of the statutory requirements of the Texas Family Code, once the parties and the lawyers present have signed the agreement, it becomes binding in all but the rarest of circumstances. Knowing that the end to litigation is now in sight is a relief for many clients. However, because of the binding nature of the mediated settlement agreement, you need to make sure that the attorney with you is well-versed in all aspects of family law so that you have covered all of your bases and negotiated the best possible deal that you can reach. You also need an advocate, a mediation lawyer, who can be certain that your mediated settlement agreement, in fact, does comport with all the requirements of the Texas Family Code, so that it is binding once signed.
In its essence, arbitration is the private adjudication of disputed matters of fact and law that would otherwise be resolved in court. Cases are usually referred to arbitration either by contract (as in a prenuptial agreement) or by agreement of the parties after the petition for divorce is filed and served. The arbitrator is empowered to hear evidence, find facts, and, frequently, render binding decisions.
Although arbitration resembles the civil trial process in several respects, it is not often used in divorce and family law. For many people, the following features of arbitration can make the procedure especially attractive:
- Arbitration proceedings occur in private and not in open court.
- Arbitration can be scheduled at the convenience of the parties rather than under the constraints of a crowded court docket.
- Depending on the issues, an arbitrator might have a better appreciation for the issues in your case than a district court judge.
Learn more about mediation and arbitration at the links below.