The popular idea surrounding divorce cases is that by filing for divorce you are signing up for a trip to the courthouse. I can’t say that I blame you for thinking this way if indeed you do. Movies, television and any other source of media that we come into contact with within our daily lives tell us that this is the case. Simply put, getting a divorce means that you will be seeing a judge and that he or she will be the one to decide the outcome of your case. There is something more dramatic and final about a judge deciding your divorce versus you or your spouse. However, we need to figure out if the reality of your life will match up with a stylized projection of it in a movie or television show.
We’ve all seen the sort of movie or television show that I am talking about. Dramatic courtroom shops, arguing spouses, attorneys yelling at each other, a judge banging their gavel ferociously on the bench, and all sorts of intrigue going on behind the scenes. This is the stuff Hollywood is made of and as a result, we have taken these fictions from the screen and apply them to our daily lives as real-life people. You can probably see where I’m going with this in that the reality of your divorce case here in Texas probably will not match up with what you have seen in those movies or television shows.
There are two ways to include divorce in Texas. The first way is to go the Hollywood row and have a divorce trial period the divorce child will see you and your spouse plus your attorney’s present habits in a courtroom that includes documents and testimony. Once all of the evidence has been submitted and accepted by the court the federal court judge will make decisions regarding several different subjects including child custody and property distribution. You and your spouse will then have to live with the outcome and make do with what was decided as best you can.
The other most likely outcome is that you and your spouse could reach a summit through formal negotiations in mediation. This is the far more likely outcome. In my experience probably 80 to 90% of divorce cases that we work on here at the Law Office of Bryan Fagan settled in mediation. Despite this, I’m sure that some of you heard the term mediations of four. I can’t say that I blame you given the stories we hear about divorce are typically not centered around this process. I hear about a divorce it usually has something to do with going to court.
Given how rare and experience it is to have a divorce case decided in a courtroom, I would like to spend today discussing the benefits and details of mediation. Even though you may know little about it right now, mediation is one of the great aspects of a divorce in terms of allowing you and your spouse to be able to have a direct say in the outcome of your case. However, it is not as simple as showing up to mediation and finishing your case off. Rather, there is a process within your mediation case that you need to be aware of to arrive at that point. We will discuss that information more in today’s blog post.
What is mediation?
Mediation is a process in which you and your spouse plus your attorneys agreed to allow a third party individual an opportunity to attempt to broker a settlement are any outstanding issue in your divorce case. That third party in this context is known as a mediator. The mediator likely is either a practicing attorney or a former judge who works to assist people in your position with their divorce cases.
Traditionally, mediation takes place at the office of the mediator. He or she likely has a physical location much like your attorney wherein you and your spouse could attend mediation together in separate offices at the mediator’s location. The mediator would then act like a ping pong ball bouncing back and forth between your room and that of your spouse. The mediator would relay settlement offers, answer questions and propose new information along the way. All of this will be done in hopes of settling your case in avoiding the necessity to attend a contested hearing or trial.
Given the necessary changes that COVID-19 brought to the legal community over the past year and a half, many mediators, parties, and attorneys have grown familiar with virtual mediations that allow parties to settle their case virtually rather than in person. It is anyone’s guess how frequently virtual mediation will be used in the future. However, this is also an option to take advantage of potentially if agreed to by you and your spouse. You should speak with your attorney about the pros and cons of virtual mediation to determine whether or not it is appropriate for you in your case.
Otherwise, mediation attempts to be as stress-free as possible to allow you and your spouse an opportunity to focus on the important details of your case rather than on the prospect of going to a trial or temporary orders hearing immediately after mediation if you are unsuccessful. This is, of course, the reality of your situation. If you are unsuccessful at settling your case in mediation you very likely will have a contested hearing or trial in the week following the failed mediation attempt. This is all the more reason for you and your attorney to take seriously the opportunity to settle your case. If you can avoid going to a trial or temporary orders hearing then that is almost certainly the best outcome for you and your spouse.
What role do the mediator play in helping you and your spouse settle your case?
The question that you may be asking yourself at this time is what role exactly does the mediator play in this whole process besides posting the mission itself? Couldn’t you, your spouse, and your attorneys sit face to face across the conference table and hammer out an agreement together with less cost in the time needed? I can’t say that I blame you for feeling this way if you do but the reality is that the mediator provides a lot of benefits to persons like you who are going through a divorce. Let’s walk through some of those specific benefits that you will experience as a result of using an experienced mediator rather than attempting to hammer out a settlement with your spouse on your own without any assistance from an outside source.
For one, remember that you and your spouse are likely not on the best of terms at the moment. This doesn’t mean that you all have to be at one of those throats but it likely does mean that you all likely are not seeing eye to eye on every issue under the sun right now. As a result, sometimes the smallest thing can create some animosity or a less than desirable negotiation environment. Imagine sitting across the table from your spouse only to see him or her give you a look that reminds you of something from your marriage or just flat out annoys you. That little gesture alone could doom the course of any mediation or negotiation attempt.
Rather, mediation with an experienced mediator allows you and your spouse the benefit of working together to settle your problems without actually having to come face to face with one another period ascent Lee, mediation attempts to remove any of the emotion or subjectivity of negotiation and focuses the discussions almost solely on the objective, fact-based issues inherent in a divorce. This may not sound like it is possible but I can tell you that it is. Mediators have a great way of putting you in an environment in which you can succeed more often than not. The difficult part of the discussion will be put aside any prejudices you have towards the legal system and allowing the mediator to do their job.
As I mentioned a moment ago, a mediator is likely an experienced and practicing family law attorney him or herself. This means that the mediator probably has had experience with the judge that you are about to go before if you do not settle your case. Additionally, the mediator likely has experience in handling situations like you are going through right now. You and your spouse can rely upon this attorney to give you objective information and perspective on the issues before you.
One of the most useful where is that a mediator can assist in the context of divorce mediation is to play devil’s advocate and help you and your spouse to understand the strengths and weaknesses of your case. I have been in many mediations were something that the client or I thought to be a strong part of our case was revealed to be not quite as sturdy under examination from the mediator. The mediator can tell you their opinion on certain parts of your case. This is especially important if you are basing your willingness to go to trial on something that may or may not be a strength of yours like you perceive it to be. Theater allows you to have an outsider’s perspective into your case and to gain an appreciation for what may happen in a courtroom should you be unable to settle your case.
Finally, if you and your spouse choose to use a former judge as a mediator then you have the best of both worlds. The former judge can not only provide you with context from a legal perspective as it pertains to your case but can do so as someone who decided cases like yours in a past life. Judges who serve in this capacity as a mediator take their jobs very seriously. In a full-day or half-day mediation session, a family court judge turned mediator will do their best to provide you with context and a unique approach to how family court judges may see your scenario. This may be illuminating both for you and your attorney. As a result, the family court judge would be able to help you identify areas of your case that are more readily settled and then also help you to work on those areas that may take more effort to settle.
A mediated settlement agreement
the result of a mediation session is the completion of a mediated settlement agreement. A mediated settlement agreement will contain all of the agreed-upon settlement terms from the mediation session. anything that was settled in mediation will be included in the mediated settlement agreement. You and your spouse can settle every issue in your case, most of the issues in your case, some of the issues in your case, or none of the issues in your case. As a result, the median settlement agreement can be rather long or extremely short.
If you and your spouse do not settle on every issue in your case that is outstanding in mediation then you will have an idea of what will need to be decided in a trial. You can provide a copy of the mediated settlement agreement to the judge in your case so that he or she can see what had been settled and what must still be decided in a trial.
The mediator will type a copy of the mediated settlement agreement for you and your spouse to review after mediation. You and your attorney should take special care to ensure that the mediated settlement agreement is not only clear and understandable but contains all of the provisions that you all had settled upon earlier that day. What you want to avoid is a situation where you and your spouse spent 1/2 day or full day mediating your case only to find that the mediator left out a portion of your settlement in the mediated settlement agreement. This can put you all in a position where someone has to go back and request a change or addition to the median settlement agreement after the fact.
From there, one of the parties will be in charge of drafting an order based on that mediated settlement agreement. The order that needs to be drafted will either be a final decree of divorce or temporary orders. Once a draft of the document is complete it will be sent to the opposing spouse for their review. Once a document is produced that meets the satisfaction of both you and your spouse, it will be signed by all parties in their attorneys. The order will be submitted to the court and you can call the court to cancel any hearing or trial dates.
Preparing for mediation
Even though many parties are successful when it comes to settling their case in mediation it is due as much 2 the preparation of the parties as it is to anything else. As someone who’s been in many mediation sessions with clients, I can tell you that the parties that prepared the best types are the ones who settle their case with the most ease. Just like anything else in life, he or she who comes prepared stands to do the best and get the best outcomes. Here is a very brief outline of the types of preparation that I’m considering.
When it comes to your community a state, you need to be prepared on how to divide your Community property based on the circumstances of your case. This means that you need to have an accurate and complete inventory and appraisement of your property ready for both you and your spouse. One of the most frustrating things in a mediation session is having an opposing party make settlement offers on the property that does not seem to be based in reality. A lot of times you may end up wondering how the other side even came up with the settlement proposals that they have. Being able to provide the other side with an inventory and appraisement does a lot to remove the doubt and wonder as to where the other side is coming from.
When it comes to negotiating on issues regarding child custody, you need to be prepared with income figures for child support and be ready to defend your positions when it comes to a visitation schedule and conservatorships rights and duties. Simply throwing things against the wall and seeing what sticks will not work. You need to be ready to defend what you want and be prepared to make counteroffers while maintaining your goals.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
if you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case. Thank you for your interest in our law office and we hope you will join us tomorrow as we post more blogs about the world of Texas family law.