When possible, opting for mediation over litigation in the state of Texas is a preferable route to settle disputes between parties. Whether used for divorce or other grievances, mediation offers numerous benefits during your case and moving forward. However, it’s important to understand what mediation is, how it works, and if it’s a suitable choice for your specific situation.
What is Mediation?
Mediation is a process where the involved parties meet with an agreed upon neutral person (a.k.a. mediator), typically an ex-judge or experience family law attorney, who acts as a go-between offering a third-party perspective, eliminating obstacles to communication, and hammering out an agreement between the parties. Think of a mediator like a negotiator, trying to help opposing parties reach a mutually beneficial resolution by means of cooperation and positive communication.
What’s the Difference Between Mediation, Arbitration, and Litigation?
Mediation and arbitration both offer solutions to avoid traditional court appearances but differ in the way they’re conducted.
Mediation: As previously mentioned, mediation is handled by an individual, neutral, third-party known as a mediator.
Arbitration: In arbitration, the disagreement or dispute is usually brought before a panel of people to judge the case. An arbitration case can be presented before a single arbitrator, but in most cases, each party chooses an arbitrator, and those two arbitrators select a third arbitrator.
Litigation: Litigation refers to the process of resolving disputes by filing or answering a complaint through the public court system.
How does Mediation Work in Texas?
Mediation in Texas can either be performed in a half-day or full-day option. Each client typically pays for his or her respective lawyer and either splits or covers the cost of the mediator based on an agreement between both parties.
During mediation, the client and lawyer sit in one room (either physically or virtually), the other party sits in another room with his or her lawyer, and the mediator moves between the rooms, working with both parties to reach an agreement.
When a final resolution is achieved, a mediated settlement agreement (“MSA”) is drafted. The MSA is filed with the court binding the parties to the terms of their agreement. A lawyer will take generally take 1-4 weeks to draft a proposed order based upon the terms of the MSA, which will be circulated amongst the parties and their lawyers for signature. Once signed, the order will be submitted to a judge for signature.
Is Divorce Mediation Available in Texas?
Yes. If agreed upon by both parties in writing, or the court refers your case, mediation can be a beneficial alternative to the traditional divorce process—even with an uncontested divorce. Texas Family Code 6.602(a).
You and your spouse can go to mediation before or after you file your petition for divorce. The court can refer your divorce to mediation after you have filed, or you and your spouse can attend mediation prior to your divorce decree being ordered.
7 Benefits of Mediation
Mediation can be thought of as something of a silver bullet to resolve a case before heading to court. Courts also like, and in some cases, insist on mediation before a court hearing. This applies to divorce and other disputes for which mediation is available. Here are seven benefits of resolving your case through mediation:
- Mediation can save you money
Typically, mediation is less expensive than traditional litigation because it greatly reduces the required legal and court fees.
- Mediation can save you time
Litigation is often a lengthy, stressful process whereas mediation can be completed much faster.
- Mediation provides you greater control of the outcome
With mediation, both parties play a substantial role in the outcome of the case. In litigation, control is exclusively in the hands of the judge or jury.
- Mediation promotes communication and cooperation
Because mediation allows the parties to be decision-makers in the case, it fosters communication and cooperation.
- Mediation is confidential
Unlike traditional litigation in which a public record is kept of the proceeding, mediation is completely confidential.
- Mediation is successful
Mediation is highly successful in the majority of cases.
- Mediation is beneficial moving forward
Because mediation is predicated on both parties coming to an agreement, it can promote better ongoing communication and cooperation between parties after their case is resolved. This is especially beneficial in a divorce case where child custody is shared and good communication between parents is advantageous to all family members.
Is Mediation Right for You?
While mediation offers a host of benefits, there are a few circumstances in which it may not be your best route forward:
- You’re in a highly contentious or physically abusive situation
- You’re unwilling to concede or compromise
- The other party is trying to hide assets
Mediation can also lead to delays if lawyers don’t agree with wording or terms in the proposed order. In this case, the mediated settlement agreement (MSA) typically contains a provision where the parties will go back to the mediator to resolve or clarify any missing or confusing terms.
Contact Carrington Smyth PLLC today with questions or concerns about your specific case, and whether mediation is right for you.
Can You Refuse to Go through Mediation in Texas?
If ordered by a judge, you must go through mediation. You can object to mediation in Texas if the other party has been violent towards you. If you choose to object to mediation, you must do so at a hearing to compel mediation.
Do You Need a Lawyer for Mediation in Texas?
While it’s strongly advised, it is not mandatory to hire a lawyer for mediation in Texas. However, a skilled, experienced lawyer will navigate you through the process, answer questions and provide legal guidance as needed.
Contact Carrington Smyth today with questions about your case or for more information on mediation in Texas.