Mediation is assisted settlement negotiation. It is a process by which the parties attempt to settle some (or all) of the issues in the case without the necessity of intervention from the court. It is the most common method of settling more complex cases, although it can be used in all types of cases. It is now mandatory in most of the Texas Family Courts for parties to attend mediation prior to the court hearing a final trial.In many courts it is mandatory even before a court will decide on the merits of a Temporary Orders (Step 2) hearing, and is Step 4 in the 5 Steps of Every Case.
Mediation usually consists of the parties and their lawyers meeting in a neutral location with a Mediator. Sometimes one attorney or the other will host the Mediation at their office but the most common practice is to have mediation held at the mediator's office. Some mediators will also allow a party that is physically not present in the city or state at the time of mediation, attend the mediation via video conference or call. In cases such as these, the attorney still physically appears at the place for mediation and the party must get this approved from the mediator first.
The Mediator is also an attorney, or ex-judge who trained and certified to become a mediator. Normally the parties agree on a Mediator, but if they cannot agree, then the Court will appoint a mediator instead. In cases such as these, the Judge will attempt to pair the parties with a mediator with a high settlement rate.
Prices for each party in Mediation range from a $250 to $2,000. Typically, but not always, mediation is $500 for half of a day (4 hours). Prices depend on the length of mediation and the quality/credentials of the mediator. The quality varies greatly, and some Mediators are better than others for particular situations, types of clients, and can relate to certain parties. Some cases don't require great mediator skills because they are going to settle whether there is mediation or not. Other cases are impossible to settle without the intervention of the court. The great majority of cases will however settle under the right circumstances, and in these cases the quality of the mediator is essential.
Mediations start with the parties in separate rooms, each party with their lawyers. Most of the time the parties never see or hear each other. Instead, the mediator acts as the mouth-piece relaying relevant information to the other party (and their attorney). The Mediator starts with the side that filed the suit (Petitioner) and gets to know their side of the story and gets a first offer from this side. The mediator will then float between rooms, exchanging offers and information to all of the parties.
The first set of offers are normally wildly apart and it‘ll look like the case will never settle. Then as the day wears on, the offers tend to be closer aligned with each other. Many mediations then reach a crisis moment, where one side says 'take it or leave it'. This is a key moment in the mediation. Usually it turns out that it is not really a 'take it or leave it' offer, but instead a signal that they are getting tired of giving up things that they want. A skilled Mediator knows how to tell the difference.
Our focus is on preparation for Mediation. Since most cases settle at Mediation, being prepared and effective at Mediation is often the single most important part of a case. We have the following guidelines for making Mediation work for my clients: