Whether to pursue a divorce and the manner in which you do so are decisions that will have a significant impact on your and your family’s future. You should be as educated as possible before making those decisions. Following are many of the questions we routinely hear from clients searching for answers about the divorce and mediation processes.
What is mediation?
Mediation is a manner of resolving disputes with the help of a neutral third party – a mediator. Mediation is commonly thought of as an assisted negotiation.
The mediator does not act as a judge or arbitrator. He or she has no power to force either side to reach an agreement. Rather, a skilled mediator relies on his or her own experiences with the type of dispute at hand to recognize the strengths and weaknesses of each party’s case, and is able to recommend potential solutions that are satisfactory to both parties.
If the parties reach an agreement, the terms are reduced to a written contract that is known as a mediated settlement agreement. In a divorce mediation, once that agreement is reduced to writing and signed by both parties, the agreement is binding and is irrevocable.
What are the benefits of mediation?
As already discussed above, the benefits of mediation include savings in the form of money, time, and emotional energy.
If you have children, those children will benefit by being spared a bitter divorce. The animosity between parents engaged in the adversarial process is escalated and exposes the children to that conflict. Children frequently feel like they must take sides during a divorce, but when mediation is conducted early in the lifecycle of a divorce, the unnecessary involvement of the children can be reduced or eliminated.
Mediation allows the parties control over the outcome of the case and avoid the uncertainty of trial. If you take your case to trial, a judge or jury (all of whom are strangers to you) will be settling your disputes for you based on limited evidence presented in a limited amount of time under strict rules that are not conducive to telling the full story. When you mediate and settle your case, you know the outcome of the case. When you take your case to trial, you are leaving the results to chance.
Mediation allows you to craft solutions that a court would not consider. Courts render orders over major issues in a case in a rather perfunctory way that does not take into account your specific values. In mediation, the parties can come up with creative ways to deal with issues that may be unique to that family. As mentioned above, a mediated settlement agreement is binding on the parties. Texas law is unique in that the mediated agreement is generally binding on the judge as well as the parties. In other words, even if a judge does not like the terms of your deal, Texas law provides that your agreement prevails over the judgment of the court.
Mediation allows you to craft solutions that a court does not have the authority to grant. When a judge rules in a case, the judge is supposed to apply to the law to the facts at hand and render judgment in accordance with the law. In mediation, however, the parties are free to solve problems using tools that the judge cannot.
Mediation allows you to maintain a measure of privacy and confidentiality that is not present in the court system. Further, except in very limited circumstances, the mediator cannot be called as a witness to testify about what you did or did not say in mediation.
How does your process differ from traditional mediation services?
In most cases, mediation is the last major event prior to going to trial. This means that both parties are emotionally and financially invested in their attorneys, their case, and their trial strategy before they mediate. The problem with this model is that by the time the parties get to mediation, each has entrenched positions and views the other party as the opponent.
To compound problems in the traditional method, both sides generally try to hide the ball to some extent during the prosecution of the case. When parties finally get to mediation, they end up having to spend so much time making disclosures to the mediator and other side that the first few hours are wasted.
Our goal is to provide an environment in which the parties discuss options before they create problems that prevent them from effectively exploring solutions. To achieve this end, we work with the parties from the beginning of the case to accumulate and organize documents and information in advance of the mediation. By the time we get to the actual mediation, both parties have already had a chance to educate the mediator, vent to the mediator, and provide the mediator with all the background information to begin working on settlement proposals.
How long does the divorce process take?
After the filing of a divorce suit, Texas law generally provides for a sixty day waiting period that must elapse before a divorce can be finalized. However, in the traditional divorce model, most cases take a minimum of six months to resolve. Typically, they take closer to a year or a year and a half. However, under certain circumstances, some cases end up lasting a few years.
Typically, our clients have completed their negotiations and have crafted a final settlement well in advance of the expiration of the sixty day waiting period. Once the sixty day period expires, they are ready to finalize the case and to be officially divorced.
If my spouse and I reach an agreement in mediation, what happens next?
That agreement is put in writing at the conclusion of the mediation. That agreement is called a mediated settlement agreement. The agreement contains all the terms that will included in your final decree of divorce. We then file that agreement with the clerk of the court.
Isn’t mediation a waste of time and money if the case fails to settle?
No. If your case does not settle and you and your spouse proceed to prosecute a traditional divorce suit, you will be more informed and prepared than you would have been had you started the traditional suit from the beginning. Further, in the mediation process, you will have narrowed some issues or identified the issues that are at the heart of the dispute. Finally, most courts will require you to mediate before you are set for trial. If your case ultimately must be tried to be resolved, you will have satisfied the obligation to mediate.
Do I need to hire an attorney to use your services?
No. We mediate most of our cases without lawyers present during the mediation. However, most our clients either have already spoken with attorneys before they hire us, or they consult with an attorney at some point before attending the mediation. This is a practice that we encourage.
Further, we have no objection to having attorneys present during the mediation.
Finally, we can accommodate parties who reach a tentative deal in mediation but want lawyers to review the deal before it becomes binding and irrevocable.
Are you able to provide legal advice?
No. The mediator cannot advocate for either party. The mediator’s role is to be neutral and refrain from taking sides. However, the mediator can and must discuss what the law is and help you to understand settlement proposals.
Are your services beneficial for parties with an uncontested divorce?
No. If your divorce is uncontested, there is nothing to mediate. Feel free to contact our law firm, Brewer Jackson & Lang, (817)764-1723, mail@brewerjackson.com if you would like to inquire about legal services related to an uncontested divorce.
Do you mediate cases other than divorce cases?
Yes. We mediate all varieties of suits affecting the parent child relationship, including but not limited to child custody matters, child support matters, enforcement cases, parentage suit, and grandparents’ access suits.
What is my next step if I am interested in obtaining more information about your services?
Feel free to contact us at (817) 527-1435, email us at craig@divorcewithoutduress.com, or click the icon below to schedule a free consultation.