Mediation is a common practice in Texas divorces because it offers the opportunity for the spouses to make decisions between themselves about how to divide parenting issues and property rather than have a judge or jury make those decisions for them. Mediation is a process in which a neutral third party (the mediator) works to open up negotiations between the spouses and help resolve the division of parenting and property issues. The mediator does not have the power to decide your divorce issues. The mediator can offer a neutral opinion or recommend approaches as well as structure the negotiations to make the process easier.
Many family courts in Texas will order mediation before setting the divorce for trial to prevent the decision-making from transferring from the spouses to the judge or jury. However, whether mediation is voluntarily entered or mandated by the Texas family court, there is no requirement for the spouses to leave mediation with a settlement agreement. Whether you should mediate your divorce can depend on many issues.
Some reasons why mediation may be right for your divorce:
- You cannot reach an agreement with your spouse but you do not want to leave things up to the judge or jury;
- There are technical details to your property or parenting issues better resolved with a mediator experienced with those issues than a judge;
- It may cost less than litigation;
- A mediated settlement agreement can bind the court to approve the agreement as part of the divorce where the judge could not order the parents to take certain steps without the settlement agreement;
- Sometimes having your voice heard in mediation is more valuable than litigation;
- Mediation puts you in the driver’s seat to approve the property division and parenting issues;
- Mediation can be faster than litigation.
Some reasons why mediation may not be right for your divorce:
- You can spend a lot of money on mediation and still have to go to trial;
- There is no guarantee your spouse will agree to a reasonable settlement offer;
- People sometimes feel pressured to accept mediated settlements;
- The mediator may be more interested in reaching an agreement than reaching the right agreement;
- The mediator may be unfamiliar with a technical issue in your divorce;
- If your spouse wants a nasty divorce you are probably wasting time and money in mediation;
- If you do not have a good understanding of the property it is easy to agree to an unfair settlement.
It is not my approach for all clients to make mediation an integral part of our divorce strategy. Each client’s case is unique. Whether mediation makes sense depends on particular details of the divorce. Even when mediation makes sense, it does not always mean it will produce a settlement.
When mediation fails, it turns into a waste of time and money for the client. That is something I always try to avoid. There are other forms of alternative dispute resolution that may be more productive. Those opportunities should receive consideration among the possible solutions for a client.