One term you might hear during your Texas divorce case is Mediation. So what exactly is mediation and what can I expect?
Mediation is a forum in which a neutral third party, the mediator, facilitates communication between parties to promote a settlement.
In the context of a Texas divorce, a mediation allows the parties to have some control over the division of assets and debts, or the terms of child custody and possession and access instead of leaving the final decision up to a Judge. Mediation is not about “winning or losing” but is about compromise to curb the continual increase in time, expense, and stress that having a highly contested final trial may cause.
Let’s start at the end and work our way back.
Results of Mediation
There are three possible outcomes to a Mediation.
- Partial Mediated Settlement Agreement (“PMSA”) – This is where the Parties come to an agreement on some issues but not all. In this case, the Parties may enter into a PMSA and the final trial would be limited to only those issues not previously agreed upon.
- Mediated Settlement Agreement (“MSA”) – This agreement is where all issues are settled at Mediation and the Parties will forego a final trial. A Final Decree of Divorce is prepared based on the agreements reached in Mediation.
- Mediation Failed – As the words imply, this is where the Parties were unable to come to any agreement in Mediation. The next step is to prepare for a final trial.
Even if the parties only enter a partial mediated settlement agreement, mediation is still a success. Any time the issues in a contested divorce case can be narrowed down and limited for a final trial, it will save the parties in attorney fees, time, and stress.
Is Mediation Required?
Will my case involve mediation? There is no straight forward answer to this question. In each county in Texas, our Courts have what is called Local Rules. For some counties, the Local Rules state that every contested divorce case requires Mediation. In those Courts, it is mandatory that clients attempt mediation. Other Courts do not address mediation in their Local Rules. Sometimes a particular Judge may Order mediation in one case, but not in another. There is no one right answer.
Just because Mediation is not mandatory doesn’t mean that Mediation cannot or will not be a viable option for the Parties. The Parties can pay for and attend Mediation on a voluntary basis.
Must We Reach An Agreement?
Regardless of whether you are ordered to Mediation or you voluntarily schedule and attend a Mediation, you are not required to settle. As a Texas Family Law Attorney, I always tell my Clients three things before Mediation begins.
- Mediation is for YOU. I can give you my opinion about the offer or compromise, but the decision is YOURS to make – not mine. In the end, YOU have to be able to live with the decision.
- It is absolutely acceptable if you do not settle. Nobody is forcing you, but you should make a good faith attempt to come to some agreements. Again, you are not required to settle, but at least try.
- If you do agree to settle, make ABSOLUTELY sure you can live with it. There is no “buyer’s remorse”. You cannot wake up tomorrow and change your mind. Mediation is BINDING. If you have ANY doubt, you need to walk away. Otherwise, whatever you agree to and sign today is set in stone.
These are very important to understand and the Mediator will go over this when Mediation starts. I explain to my Clients that Mediation is a win-win, lose-lose situation. When parties truly compromise, then both parties walk away with some winning issues and losing on some others. It is a give and take.
So what is a good faith effort? Basically this means you appear for and attend Mediation with a mindset of compromise – you should be willing to give up some things that may not be that important to you in order to receive some things that may be more important. Having an open mind to mediation does not mean you must sacrifice everything. The key here is to remember in the end, is the agreement something you can truly live with, even though it isn’t 100% in your favor.
What Should I expect In Mediation?
Now that you understand what Mediation is, let’s talk about what you should expect in a Mediation. Mediations are usually scheduled for either a half-day (roughly about 4 hours) or a full-day (roughly 8 hours). Some Mediators have their own office while others travel to various locations.
In most cases, you and your attorney will be in one room while the other party and his or her attorney will be in another. The Mediator will spend some time going back and forth between the two rooms. It is not uncommon for the Mediator to spend an hour in each room. Some Mediators take on the role of Devil’s Advocate when discussing the case in each room. The Mediator is trying to understand what is more important to you and to make the arguments presented from the opposing side. When in the other room, the Mediator is doing the exact same thing.
It is rare to complete Mediation within a very short time. Most mediations I have attended as a Texas Family Law Attorney went up to the final minute and even past the 4 hour mark. It is not unusual to have an agreement put together in the “final” hour.
We agreed in mediation. Now what? One of the Attorneys will prepare a Final Decree of Divorce based on the Mediated Settlement Agreement. Once the paperwork is complete, each party and their respective attorneys will sign the Final Decree and it will be presented to the Court for signing.
Ideally, the parties will all sign the Final Decree and the Order entered. But that doesn’t always happen. If your Attorney prepared the Final Decree of Divorce and the other Party will not sign it, your Attorney may need to file a Motion with the Court to force signing.
What happens if we only reached a partial settlement? The Partial Mediated Settlement Agreement will usually be filed with the Court, though this is not always the case. The Parties can stipulate on the record the issues already agreed upon and narrow the scope of a final trial to just the contested issues. This will help keep the final trial focused and take up less of the Court’s time. After the final hearing, a Final Decree can be prepared that incorporates the partial mediated settlement agreement and the Court’s ruling.
The key points to take away from this is that Mediation is not always required, but it may be a great avenue for the Parties to explore. Having a neutral third party go between the Parties is sometimes very helpful in flushing out some of the issues and facilitating an agreement. However, if an agreement is reached, you must understand that a signed Mediated Settlement Agreement is BINDING. You cannot change your mind after “sleeping” on it. If you are ever in Mediation and you have second thoughts, then you should hold off and consider the options before agreeing. There is no “undoing” it.