In family law mediation, the divorcing couple goes to a designated meeting spot, with each spouse and his or her attorney in separate rooms. In most cases, the parties will not see each other during the mediation. Almost all Texas divorces go through mediation in hopes of avoiding a trial.
A mediator, who is a neutral person trained in mediation and preferably a skilled attorney hired for the purpose of conducting the mediation, goes back and forth between the rooms and tries to negotiate enough common ground to settle the case. If the case is settled, a mediated settlement agreement is prepared and a final order is prepared at a later date to include the required legal language and the specifics of the agreement, if appropriate.
Once signed, both sides are entitled to a judgment on mediated settlement agreement. That means if someone signs an MSA, he or she should not plan on getting out of the deal later.
Mediation can end in one of four ways:
- Settlement of all of the issues
- Settlement of some of the issues, leaving some to be tried by the court
- Recess, which means the parties will come back to mediation another time
- Impasse, meaning the parties couldn’t come to an agreement and the case will go back to the court
Nothing that happens at mediation can be brought up in court. All of the offers are confined to the negotiations, and the mediator cannot be called to testify about the process. That means you are free to make offers without worrying about those offers being repeated to the judge or by your spouse’s mediation lawyer.
It is important to work with your attorney before the mediation to decide preliminary offers and how far you are willing to go on any particular issue. It’s easier to do that ahead of time, when there is less emotion, than it is to do it in the heat of a negotiation.
Getting ready for mediation isn’t necessarily difficult, but it does take some work. Part of that work was done while you were getting your attorney the paperwork he or she needs to try the case. Part of it is sitting down with your lawyer and coming up with a strategy for handling the mediation and developing limits.
For property division, your attorney, with your help, will likely prepare a spreadsheet so that when you’re negotiating, you can see the division of assets in written form. Sometimes clients choose to work with their attorneys to prepare a position statement to give to the mediator ahead of time, so the most use can be made of everyone’s time on the day of mediation.
Mediation, like all settlement, takes two sides. If both sides want it over and are willing to bend some, then your lawsuit might be just that close to conclusion. But experience counts, even in mediation. Negotiation strategies are learned over time and with a lot of practice. The Family Law attorneys at Orsinger, Nelson, Downing & Anderson can help you navigate the mediation process.