Introduction to Family Law Mediation (Primarily in Harris County, State of Texas)
Saturday, November, 10, 2012
Divorce mediation is a process where you and your soon to be ex-spouse (or significant other) meet with a neutral trained third party family law mediator to reach a settlement in your lawsuit (divorce or SAPRC or modification). Many people don’t realize but a divorce or modification case is a lawsuit. (A SAPCR is a Suit Affecting the Parent Child Relationship in the State of Texas. A SAPCR is normally when the parents are not married to one another but there are minor children involved.)
A family law case is controlled by the Texas Family Code which is available on-line. In the larger counties in Texas, family law cases are handled in specifically designated courts by judges that only handle family law cases. In smaller counties, judges hear a variety of cases and only hear their family law docket on certain days of the month.
Cases such as probate, elder law, incapacity, and guardianship are controlled by the Texas Probate Code which is also available on-line and they are handled by a different set of courts. Again, in smaller counties, judges will hear all cases presented to them on specific dates.
There is no time limit to the mediation so that you have time to explore and discuss options. Some mediations can take 2 hours and some can last 12 hours. If progress is being made, usually the parties don’t want to stop their mediation. Additionally, while most mediations are a one-time event, sometimes the parties can agree to stop a mediation and agree to meet again at a later date. Why? Perhaps additional information is needed by the parties to make a decision or one party is overwhelmed and needs time to think about their options.
There is no limit as to what issues can be discussed - spousal support, child support, assets, debts, visitation, children's hobbies, children's special needs, etc.
However, if a party admits to child abuse or threatens to commit a crime then the mediator MUST immediately stop the mediation process. Other than those situations, mediation is a confidential, private process.
The mediator cannot be called as a witness at trial. The mediator does not keep notes of the mediation. At the end of the mediation, the mediator destroys all notes that were taken during the process.
Both parties are urged to retain legal counsel since the mediator cannot act as an attorney while serving as a mediator. The mediator cannot draft legal documents so an attorney is needed to prepare any legal documents that will be needed for the Judge to sign to finalize the legal proceedings. The mediator cannot go to court with the parties.
Many people like mediation because it is cheaper and faster than going to court. It is a much more informal process than going before a Judge. The environment is much more relaxed than the courtroom. The mediator asks both parties to be honest and negotiate in good faith. The mediator attempts to level the playing field. Neither party is allowed to emotionally or physically abuse the other spouse. A mediator will attempt to diffuse emotions and focus on common goals to resolve your differences. You will not be forced to enter into a final agreement. The process is entirely voluntary. However, it is essential that both parties disclose all assets and liabilities. If a party is dishonest or attempts to hide information then the mediation process cannot be fair and equitable. You always have the right to continue with litigation and trial in front of a judge (or jury) if you are not satisfied with the mediation process.
Many people like the fact that mediation is a private and confidential process. The offers made cannot be mentioned to the Judge. (Just like the Las Vegas ad -- what happens at mediation, stays at mediation.) Often the mediator will "think outside of the box" and bring creative solutions that a judge could not offer because the Judge must follow the Texas Family Code. A mediator can offer solutions outside the TX Family Code that might work better for you and your children.
Mediation can often begin the healing process to allow the parties to begin to co-parent their children. Even though the marriage is ending, the parents will be co-parenting their children for the rest of their lives. In fact, they will be co-grand-parenting their future grandchildren. It is often said that a marriage might be ending but the family endures. Mediation is much less adversarial that a trial. At trial, "mud" will be slung to show how bad each of you are - the hurt feelings are traumatic and will probably impact the children. After "slinging" all that dirt then you get to leave the courthouse and try to co-parent your children together. Mediation helps the divorcing couple create a parenting plan that focuses on what is best for the parents and the children. No judge knows you and your children as well as you do. A judge will make decisions -- but they will probably be decisions that neither of you like.
Mediation is usually not recommended if there has been extensive physical or mental abuse. Attorneys recognize that there are a small percentage of cases that just need to go to trial in front of a judge.
If you reach an agreement, everyone signs a document called a Mediated Settlement Agreement (MSA) that is filed at the courthouse. It is binding and cannot be changed. In other words, you are "stuck" with what you sign. The case is done - finished - completed. Then an attorney must take the MSA and prepare the final paperwork so that a judge can sign it so that can be "enforced" at a later date if one of the parties does not follow the agreements that both of you agreed to do.
Mediation is one form of alternative dispute resolution (ADR). There are many excellent websites that cover mediation. Each state handles mediation slightly differently. In the State of Texas, mediation is normally required before you can get a trial date before a judge.
Most family law attorneys won't tell their clients this when a case first starts, but over 90% of family law cases settle before trial before a judge or jury.
Very few family law cases in the State of Texas choose to have a jury trial for a variety of reasons: (1juries only hear a limited number of family law issues; (2) costs of a jury trial -- expect to pay over $20,000 if you want a jury trial; (3) it might take up to 2 years to get a trial date from the judge.
If you have a family law case in Harris County, Texas, anticipate being sent to mediation before you get a hearing date in front of a judge.
Many of the Harris County judges now require that you attend mediation BEFORE having a temporary order hearing. Therefore, you could be ordered to attend mediation at the beginning of your case and again at the END of your case. WHY? In Harris County the family district courts are overwhelmed with cases and the judges need to move their dockets along. They have found that the majority of cases can be resolved at mediation. The judges have found mediation to be productive in the bulk of cases. It thereby allows them time to handle the small number of cases that require their time and attention.
There are 2 free mediation services in Harris County, Texas. You must qualify for these free mediation services.
Private mediators charge from approximately $250-$1,000 per side for 4 hours.