Understanding Family Court Mediation
What is Mediation? Mediation is an informal process in which a neutral third-party (the Mediator) assists in resolving a dispute between two or more parties. The role of the mediator is to facilitate discussion between the parties, assist them in focusing on the real issues, and generate options for settlement. The mediator will not decide if either party is "right" or "wrong." The mediator will not force any party to accept a settlement that is not agreeable to everyone, and the mediator will not give legal advice. What happens at mediation? At the mediation, the parties will sit down with the mediator in private and explain the problem as they see it and how they think the matter could be resolved. The mediator oversees the discussion to allow each party a full opportunity to be heard in an atmosphere of cooperation and respect. Does the mediator meet with both parties together or separately? Mediators can either work separately with each party, acting as a go-between, or with both parties present in the same room. There can be advantages and disadvantages to each approach, depending on the circumstances of the particular case. This is a question that the parties should address in advance with their attorneys. Do I have to attend meditation? In certain circumstances, mediation is required. For example, in both Harris and Fort Bend Counties, parties are required to participate in the Alternative Dispute Resolution (ADR) process prior to any temporary orders hearing in which custody is an issue. Likewise, one party can petition the court to order ADR participation prior to trial. Can we go to mediation without a court referral? At any time, even before a case is filed, the parties may agree to attempt to resolve their dispute by attending mediation. You do not need a court order to enter into mediation. Is mediation always appropriate? No. Mediation is not recommended in cases involving family violence. What types of issues are decided at mediation? Generally speaking, anything that can be decided in Court can be agreed to in meditation. As it relates to family law, issues such as conservatorship (custody), child support, visitation, property division, spousal support, debt allocation, use of the marital residence/motor vehicles, geographical restrictions, etc are often settled in mediation. What happens if we reach an agreement? The mediator will then draft a Mediated Settlement Agreement (MSA). The parties and their attorneys will review the proposed agreement, and if it accurately reflects the desires of each party, it will be signed (by the parties and their attorneys, if present) and filed with the court. Once filed, it has the effect of a court order. What if we agree on some things and not others? This is fairly common. Any issues not settled in mediation will go before the Court. What if I change my mind after signing the agreement? I can not stress the importance of fully understanding and agreeing to ALL of the terms of the MSA. Once signed, most MSAs are binding and irrevocable. You will have to abide by the terms of your agreement (even if you change your mind the next day). How long does mediation take? Mediations are usually scheduled for a ½ day (4 hours) or a full day (8 hours). What if we can’t seem to agree on anything? An impasse will be declared, the mediation will end, and the parties will then go before the Court to have the judge decide. Who can attend the mediation? Typically, the parties involved and their respective attorneys may attend. In some cases, parties are allowed to bring along one support person, but that individual will not be allowed to participate in the mediation. It is not appropriate to bring children to mediation. How much does mediation cost? In some cases, the parties may attend meditation at a local dispute resolution organization free of charge. However, if a private mediator is used, the parties should expect to pay by the hour. The cost is usually split equally between the parties. Why is mediation so important? 1. For starters, mediation is private. The only ones present are the parties, their attorneys, and the mediator. Courts are open to the public. So, in addition to various individuals, there will also be court personnel and other attorneys present. It is a lot easier to discuss aspects of your personal life in private rather than in front of an audience of complete strangers. 2. Decisions concerning your life should be made by you, and not for you. The judge does not know you or your children, and you will be forced to comply with the Court’s order whether you like it or not. Mediation requires compromise between the parties and individuals usually leave feeling as if they had a “say so." After a court proceeding, however, one party always feels as if they got the short end of the stick. 3. Mediation is also confidential. The mediator can not be called into court to discuss anything you may have told them. This encourages the parties to be as candid as possible. 4. Mediation is cheaper and faster than going to trial. Do I need a lawyer to go to mediation? You do not need a lawyer, however, if there are substantial legal issues involved, it is best to consult with an attorney about what your legal rights are prior to going to mediation. Mediators may or may not be lawyers, but in mediation, the mediator cannot give legal advice to the parties. You are entitled to bring your attorney to a mediation session if you wish.