Mediating your Divorce or Custody Case
By: Alyson Falk
When we start talking to clients about the mediation process, many assume it will look like that infamous first scene from the 2005 comedy, Wedding Crashers – where the husband and wife are sitting across from each other at a large conference room table, each flanked by a divorce lawyer, with two mediators sitting at the head of the table trying desperately (hilariously, also ridiculously) to help the couple reach a resolution. Here is a link if you have forgotten: https://www.youtube.com/watch?v=h_IIyeLhmF0
What does Mediation Look Like?
Mediation of your divorce or custody case in Central Texas will not look like Wedding Crashers. You will be in a room with your attorney, the other party will be in another room with his or her attorney, and the mediator will go back and forth between the rooms. This style of mediation is called Caucusing. Since the Pandemic began, mediations are also conducted on Zoom in the same format.
Mediation often lasts all day, and sometimes much longer. It is important that you make sure your obligations at home (pets, kids, errands, etc.) are handled for the day of your mediation so all of your focus can be on a successful resolution.
Confidentiality and Mediation
Mediation is strongly encouraged by the State of Texas and our Court system, so there are strict confidentiality rules that apply to mediation to protect you and the mediation process. There are two layers of this confidentiality –
The first layer of confidentiality is in your private room with your lawyer and the mediator. Everything discussed in your caucus room is completely confidential from the other party’s room except for the settlement offers you send to the other room and any other information or documents you authorize the mediator to share in the other room. This is helpful for the mediator because you and your experienced family law attorney can confidentially share what your trial positions may be, your priorities and motivations that justify your strongly held positions, and concessions you may be willing to make as the negotiation process unfolds. If there is ever anything of a sensitive nature you wish to discuss with your lawyer outside the presence of the mediator, you are welcome to ask the mediator to leave the room at any time.
The second layer of confidentiality is with respect to the mediation process itself. Everything that is said and every offer exchanged is completely confidential from the Courthouse. In fact, the only things the Court will ever know about mediation is whether you attended and whether you reached a Mediated Settlement Agreement. If you attended mediation but did not reach a resolution, the Court will only know you were unsuccessful; the Court is not allowed to know anything about the settlement offers you exchanged at mediation.
So you have a say in what your life will look like. Actively participating in reaching the terms of your settlement agreement—whether that is for Temporary Orders, your Final Decree of Divorce, or your Final Order in a custody case—is important because, at the end of your divorce or custody case, no matter how contentious it may be, only you and your family will be directly affected by the terms of your settlement agreement. Taking the time to critically and practically think through what really matters to you and how life will look under the terms you negotiate makes it more likely that the terms you agree to will actually work for you and your circumstances, rather than being stuck with a Judge’s orders that may feel arbitrary to you even when the law says those terms are in your best interest and fair.
Because trial is expensive. If you are unable to reach a resolution at mediation and a hearing or trial is necessary for resolution of your divorce or custody matter, you may spend tens of thousands of dollars preparing for Court so that a Judge can decide everything for you. Aside from the financial cost, family law hearings are emotionally taxing and can be embarrassing—often the worst, rather than the best, of everyone is on public display. If custody is at issue, you can imagine that it will be very difficult to coparent with someone after you all have been drug through the mud and spent a fortune in Court.
**Courts in Central Texas that handle divorce and custody matters require mediation in nearly all divorce and custody lawsuits before you will be allowed to set your final trial. An exception to this rule is in cases involving family violence—if you are a victim of family violence, you will not be required to attempt to settle your matter by negotiating with your abuser.
Mediation Works, but Preparation is Key
The overwhelming majority of divorce and custody cases are resolved through negotiation and mediation. As with anything you do in life, thorough preparation is the key to a successful mediation. By the time you arrive at mediation, documents will have been exchanged with the other party and your experienced family lawyer will have done all the prep work necessary to have a clear understanding of each side’s strengths and weaknesses, and a negotiation strategy to achieve your goals.
If you are mediating a complex property division in a divorce case, this means your experienced family law attorney, perhaps with the help of hired experts, has reviewed your marital assets and liabilities and created a spreadsheet that clearly shows current values and legal claims regarding how things will be divided.
If you are mediating a high conflict custody dispute, this means that your experienced family law attorney has reviewed important records regarding the children, evaluated potential child support obligations, analyzed with you where the children ought to live and go to school, and worked through prospective possession and access schedules with you to determine what will and will not work for your children.
It is imperative that you have a meeting with your experienced family law attorney before attending the mediation so that you are prepared for the long day of hard work you will do at your mediation.
At the end of a successful mediation (i.e., one that results in a Mediated Settlement Agreement), it is almost never the case that one side feels he or she has “won” something. Mediation is a long, hard day where so much is on the line, and it is always the case that both sides feel they have made concessions to get something they prioritized. You will likely be exhausted in the end, but a successful mediation means you will be spared the high financial cost of going to Court and the emotional cost of publicly battling with someone who used to be your family (and who you may be coparenting with for many years to come).
Consult with an experienced family law attorney regarding your divorce or custody matter and how mediation may be helpful to you.
If you have questions, let the experienced family law attorneys at Lazar Law can help you make sense of it. Send us an email or call 512-477-1600 to schedule time to talk with us.