The Truth About Mediation in Divorce Cases

Mediation is one of those topics that everyone has heard of, but most do not fully understand. In many industries, agreeing in advance to resolve disputes via mediation is mandatory. Although the mediation requirement depends on the court and local county rules where the case is pending, mediation has become required in most family law cases in recent years. The requirement has resulted from the increase in divorce and related family law cases. In promoting mediation, the Texas legislature is seeking to relieve family law courts of the tremendous burden of increased cases, especially in the larger metropolitan areas. It is not unusual for a family court in one of these counties to have 50 cases on the docket any given day. Depending on the court, there may be only one judge available. It has become overwhelming for the judges and their staffs, and this has led to litigants waiting an unnecessarily long time for their cases to conclude.

Mediation does have a number of advantages over litigation, but also a number of pitfalls you must understand. Today, let’s review the advantages and disadvantages of mediation in divorce situations and why getting legal advice is still essential.

First – Mediation is not Arbitration

While both are alternative dispute resolution processes, arbitration is closer to a legal proceeding. The arbitrator hears testimony, reviews evidence, and makes a decision. An arbitrator is typically a retired judge, an attorney, or some other professional. The primary difference in arbitration is the idea that the arbitrator will hand down a legally binding decision at the conclusion of the proceeding. This differs from mediation, where the point is to reach a negotiated settlement. There generally isn’t much negotiation in arbitration.

So What is Mediation?

By definition, mediation is a process utilizing a neutral professional (the mediator) to help the parties identify issues and resolve disputes. In a divorce setting, the involved parties are the estranged spouses. Below are some of the benefits to mediation (compared to court):

• Usually Saves Time and Money – Reaching a divorce agreement via mediation is much less expensive than the traditional route of trying a case to a judge or jury. It can also be much faster (with no court dates to secure) and may make it possible to avoid some of the legally prescribed waiting periods in divorce proceedings (but not the 60-day waiting period for a divorce to be finalized in Texas).

• No Dictated Settlement – Mediation is all about negotiating an agreement. If the parties have been unable to resolve (for example) issues like the division of assets or child visitation, mediation allows the parties to craft their agreement. Nobody knows better than the parties the details of their situation, especially when children are involved. A judge or jury will be bound by the Texas Rules of Civil Procedure, which often limits what facts a judge or jury can present. Since mediation is not a court proceeding, almost any facts can be put on the table, often leading to a much more workable solution for the parties than they would get in a courtroom.

Caution:  Mediation is a process undertaken at a very emotional time and should be approached with legal representation and guidance, even in what seems like a “simple” case. Because mediation is binding (as discussed below), the decisions reached in mediation may drastically affect the outcome of the case. Most of the decisions made there usually cannot be undone, even by a judge.

What to Watch Out For

• Attending mediation without legal advice – A mediator is a neutral party whose duty is to facilitate an agreement. Mediators do not find fault, issue orders, or make decisions. Unless you have professional counsel present, the only person looking after your best interests at mediation is you. Mediation can quickly descend into chaos because even though it is an informal process, it is still highly emotional. Any manipulative, domineering or abusive behaviors present during the marriage can resurface during mediation, with the same results. An attorney representing you will not allow this to happen.

• Illegal Actions May Not Be Discovered – A mediator is not expected to ask the right questions or do the proper research to uncover (for example) hidden assets, only to try to facilitate an agreement. A skilled attorney would be qualified to investigate and use the discovery process to ensure all parties have a complete and accurate picture.

Mediation is Binding

Consider this – wouldn’t you want some expert advice when making decisions that will impact the rest of your life? You definitely would, and it’s the smart approach. Mediation is legally binding, and once such an agreement is signed, if the proper legislative requirements are followed, there isn’t anything anyone (even your lawyer) can do to change it. However, if you consult a lawyer before mediation, you will receive guidance that will likely pay for itself a hundred times over. You will also gain insight into the mediation proceedings, what to expect, the difference between legitimate requests and non-starters, and a professional assessment of what will be fair to expect or pay in support given your unique circumstances. Even after you have an agreement, an experienced family attorney should review it to be sure it accurately reflects what was discussed.

You Get What You Pay For …

A mediator does not have to be an attorney. Some financial planners and other professionals take mediation training and become mediators. They promote their services as being less expensive than hiring an attorney, especially if both parties attend the mediation without counsel. The problem with this is while the financial planner can do a spreadsheet of the assets and liabilities, and the non-attorney mediator can tell you how good they are at negotiation, they are NOT lawyers. They cannot give you legal advice. They have not tried cases in the court where your case is pending. They cannot tell you if the agreement you are considering would meet the “smell” test of the judge in your court. Why does that matter if that judge cannot overturn the agreement? It matters because to make a rational decision about the offer on the table, you have to know what your risks are. Your risks are determined by the judge in the court where your case is pending. You must weigh the offer on the table in mediation with what the judge in your court is likely to do, or else how do you know if you are making a good decision?  You must weigh what is on the table against the costs to try to case in front of that judge. And that is why if you have legal representation, your attorney will ensure that the mediator helping you resolve your case will also be an attorney, once well versed in family law AND in the court where your case is pending. And that means when you make these life-changing decisions in mediation, you will make the best decision possible for you.

If you have any questions on this or any other family law issue, feel free to contact us and schedule a virtual or in-person consultation.