The traditional divorce model relies on litigation to reach an outcome. While this is necessary in cases where the parties cannot reach an agreement on their own, litigation is not the best format for all divorces. In fact, it can sometimes make a divorce more contentious than it needs to be.
In such cases, mediation is a great alternative. Mediation is one form of alternative dispute resolution where the parties agree to first try and negotiate the terms of their divorce rather than litigate. It is often much faster, economical and less acrimonious than trial. In most contested family law cases, in counties in which we practice, the court will require the parties to mediate before setting a final hearing. As a result of this, many cases will be settled in mediation without there being a trial.
In a mediation, the parties are almost always in separate rooms with their attorneys by their side (attorneys are not required but are strongly recommended). A mediator, who is a neutral third party, goes back and forth between the two rooms hearing the issues in the divorce from each party and working with the parties and their attorneys to reach a resolution.
A mediation can last for as long as it takes to reach an agreement. Typically, in family law cases, mediation will be scheduled for a full day. When an agreement is reached, the parties sign a mediated settlement agreement and file that agreement with the court. The mediated settlement agreement contains language that makes it binding and irrevocable. If an agreement is not reached in mediation and the case is later tried, the settlement offers made at mediation are not admissible in court. If the parties were close to reaching an agreement but ran out of time, typically the attorneys will schedule follow-up sessions to continue working towards a resolution.
Mediation is not arbitration. In arbitration, the arbitrator acts like a judge and, after hearing the evidence, makes a binding decision. In mediation, you may not walk away with everything you came into mediation wanting, but frequently a fair compromise is reached so both parties can leave feeling that they have controlled their own settlement.
You should work with a lawyer. It is best to have your attorney with you in mediation rather than attempting to represent yourself. Your attorney is your trained legal advocate and will advise you at each stage of the negotiation.
Mediators vary in price and experience. If you have a complicated divorce case with complex child issues or property issues, a mediator who is also an attorney may be your best option.
Mediation is often the first step. In most courts in Central Texas, the judges will require the parties to mediate prior to setting a contested final hearing.
Scanio & Scanio, A Professional Corporation, is located in San Marcos and serves clients throughout Central Texas, including Hays, Comal, Caldwell and Guadalupe counties.
Whether you are an individual who is about to get divorced or another attorney seeking assistance with mediation, call us at 512-396-2016. You can also fill out our online contact form.