Given that so many cases resolve in mediation, it is often the most crucial part of a family law case. Amazingly, lawyers often fail to explain the mediation process to their clients, which causes them to walk into the process uneasy and unprepared.
What is Mediation?
Section 6.602 of the Texas Family Code states: (a) On the written agreement of the parties or on the court's own motion, the court may refer a suit for dissolution of a marriage to mediation. Section 153.0071 of the Texas Family Code similarly states: (c) On the written agreement of the parties or on the court's own motion, the court may refer a suit affecting the parent-child relationship to mediation.
Mediation, quite simply, is a negotiation between you and the other side of the divorce or custody case. The goal is to come up with a settlement agreed to by both parties. Each District Court requires mediation. Some Courts will even require you to attend mediation twice during a case—once before a Temporary Orders hearing and once again before the final trial.
Mediation is conducted by a mediator, a neutral third party chosen by the parties or the court to facilitate settlement discussions. The mediator is often a family law practitioner or a retired judge.
The mediation process entails the parties and their respective lawyers meeting either virtually, in person at the mediator’s office, or one of the attorney’s offices. The parties are usually in separate rooms with their attorneys. The mediator goes back and forth to each parties’ room, bringing offers from the opposing side and attempting to help with the settlement of the case. A “joint session,” where parties meet in the same room, is rare as many mediators do not use this tactic.
The entire mediation process is confidential. The parties cannot repeat in court what was offered in mediation. And finally, the mediator does not repeat what was said in one party’s room to the other party; except for instances of child abuse or elder abuse, when offers are being exchanged, or when granted permission by the offering party.
How Do You Prepare for Mediation?
Meet With Your Lawyer
First and foremost, a client and the lawyer should meet before the day of the mediation. It is surprising how often lawyers do not meet with their clients until the day of the mediation. Not meeting with your lawyer right before mediation for prep will naturally result in a more unsatisfactory outcome as the client is understandably unable to make informed decisions with so little preparation.
Draft a Mediation Memo
A well-prepared lawyer will meet with the client and prepare a mediation memo for the mediator in advance of the mediation. In this memorandum, the lawyer gives the mediator background information about the family, the parties, the children, and pertinent information about the case. The memo should also be used to point out the client’s goals in mediation.
Prepare a First Offer
It is always a good idea to come to mediation with a first offer ready. It is illogical to wait until the day of mediation when the parties are paying for both sides’ attorneys and the mediator to come up with a first offer. The lawyer should take the opportunity to come up with a comprehensive first offer during the mediation preparation meeting. This also helps make sure minor, but important, details are not left out in a rush.
Every client has non-negotiables. For example, a 50-50 possession schedule may be a non-negotiable for a client. Not paying spousal maintenance (or receiving spousal support) may be another non-negotiable. Each client is unique. If there are issues that are merely non-negotiable for the client, they should be brought up before the mediation, so the lawyer knows how to approach those issues strategically.
Talk About the Logistics of Mediation
Before mediation, the client should know all the logistics of mediation, so the client is not surprised by anything unexpected. The logistics of mediation include the following:
- Start time;
- Name and address of the mediator;
- If the mediation is virtual, the login and passcode information;
- Cost of the mediation; and
- Expected length of mediation (whether half-day or full-day).
Discuss Next Steps If the Case Does Not Settle
Every client should walk into the mediation, hoping to settle but knowing what to expect if the case does not settle. This is only logical. How can you decide if a settlement makes sense if you do not know what happens if you don’t accept an offer? Before the mediation, the lawyer and client should discuss the next steps if the case does not settle. This discussion should include the following:
- What additional work is needed on the case (e.g., depositions, appraisals, additional discovery, and trial preparation);
- What a realistic outcome at trial will be;
- How long the process may take; and
- What the expected costs will be.
What Happens If You Settle in Mediation?
If the case settles in mediation, the parties will sign a mediated settlement agreement (MSA). If the correct statutory language is in the MSA, the agreement is binding and irrevocable.
In other words, “buyer’s remorse” is not allowed.
Sections 6.602(b) and 153.0071(d) of the Texas Family Code both state:
A mediated settlement agreement is binding on the parties if the agreement:
- provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation;
- is signed by each party to the agreement; and
- is signed by the party's attorney, if any, who is present at the time the agreement is signed.
Once the MSA is signed, either party is entitled to judgment on the MSA. The case will be complete once the appropriate orders and closing documents have been drafted, signed by all necessary parties, filed with the proper court, and approved by the judge.
What Happens If You Do Not Settle in Mediation?
If you do not settle in mediation, the case proceeds forward. Often, this means that the case will be set for a trial in front of a judge or jury. Additional work may be necessary before the case goes to trial. This does not mean that the case must be tried. Parties who do not settle in mediation often will still settle at a later date, before the trial.
Mediation is a necessary and often fruitful step in most family law cases. The process can result in the parties avoiding additional litigation and compromising on a settlement that resolves the case once and for all. However, if a client is unprepared for mediation, the results can be disastrous. Preparation is vital for a good result.