I regularly have new clients who have misconceptions about what mediation is. This piece, while making some comparisons and contrasts to other states, is focused on what Mediation looks like in Texas.
What IS Mediation?
Mediation is a dispute resolution process. Mediation was referenced as far back as the Bible but most people don’t know too much about what it actually is. Clients usually have the misconception that Mediation is a “stand-alone” process but what clients need to know is that, at least in Texas, mediation is a dispute resolution method WITHIN the litigation process, which means AFTER a petition for divorce has been filed with the Court. Mediation is also conflict resolution method that is different between various areas in the country and throughout the world.
In California, for example, a third-party mediator is often be retained by parties who want a divorce, and that mediator will meet with the parties, with all three of them typically in the same room (referred to as a Joint Session), often in multiple meetings over a period of weeks, working through all the issues in the divorce. Some mediators even help the parties prepare and file their petition and draft their Decree of Divorce.
In Texas, mediation became mainstream in the 1990s, but mediation in Texas has evolved into “caucus mediation,” where the third-party mediator goes in between the two rooms where one party and his or her attorney are separately stationed during the mediation. Typically, a mediation in Texas begins at 9:00 a.m. and concludes by 5:00 p.m. that same day, or they can go late and conclude into the early hours of the following morning. But most mediations in Texas start early one morning and end in the evening hours of that same day.
What Mediation ISN’T:
- The Mediator is a neutral–he or she CANNOT make any decision in your case. They cannot report to the judge that anyone misbehaved or were uncooperative in the mediation. The only thing the mediator is allowed to report to the Court is IF the case settled, partially or completely, or if it didn’t.
- A trial provides you with a DECISION-MAKER–THE JUDGE or a Jury (in some cases)–when your trial is over, the judge or jury WILL make a decision and your case will be over (of course, there can be appeals, but typically the end of the trial means the case is close to the end).
- A Mediation is not a trial—the purpose of the day is not to give you a feeling that you have gotten your side of the story out and have received revenge or vindication–the purpose of the mediation is to end your case.
What are the advantages of Mediation?
- In Texas, most cases simply need for everyone (lawyers and clients) to come together in the same location and focus on settling their case; most of the time when they do that, the case settles without needing to go to court.
- If the parties reach an agreement in mediation, they sign a Mediated Settlement Agreement, which if the language properly follows the requirements in Texas law for mediations, is IRREVOCABLE. In other words, neither side can back out of the deal–the case is over except for the drafting of the decree and the signing of it by the judge.
- Mediation is much less expensive than protracted litigation and a trial.
- You have some control because no agreement is going to happen if you do not agree–you may not feel completely good about the agreement, but YOU have made the decision; it was not made by a judge or jury.
- Mediation is CONFIDENTIAL–no one other than the clients, the mediator and the lawyers will ever know the facts of your case and no evidence will be presented in public.
What are the disadvantages of Mediation?
- The one-day model can cause clients to feel pressured by time and the continuing expense if they do not agree to finish the case that day.
- The Texas mediation model is deceiving in its cost: most clients do not realize that their attorney will need to prepare for the mediation, and that preparation and the cost of each attorney’s day at the mediaation will cost each client several thousand dollars.
- The Texas mediator, if the clients do not qualify for a not-for-profit mediation center’s services, will typically cost each client from a thousand to several thousand dollars for that one day.
- Even if the parties agree and their attorneys draw up a Decree, they may still have Court hearings to resolve the details in the Decree, so the cost usually does not end the day of the mediation.
- Because of the pressure of the mediation being all in one day, parties often think of issues or details that were not completely dealt with and resolved during the mediation.
- So, what might be considered an advantage (that if the parties reach an agreement in mediation they sign an Irrevocable Mediated Settlement Agreement) can seem a disadvantage if some issues are forgotten or not brought up due to time constraints and that Irrevocable Mediated Settlement Agreement cannot be undone.
Mediation, even with its limitations, can be a good option for many cases to be resolved. But before clients even begin their divorce, they should educate themselves on the pros and cons of all their options, including litigation and Collaborative Divorce, and decide which option will be best for them.