Many family law courts in Texas, including those in the greater Houston area, have adopted a mandatory mediation requirement in an attempt to resolve divorce cases without going to trial. Most courts now even require parties to attend a mediation session prior to a hearing on temporary orders.
Mediation can be quite useful in divorce cases. This process offers couples the opportunity to save time, reduce costs, maintain privacy, preserve their dignity, resolve disagreements and if necessary, have better control of their future relationship, especially if minor children are involved.
Most divorcing couples whom I work with typically start their divorce process with a preparation phase we call “discovery.” During this initial stage, the spouses and their respective attorneys gather and share all the couple’s financial information, assets and liabilities, income information, etc. Early in the process couples may also set up “temporary orders” prior to mediation. These lay the ground rules for the divorce process and protect the spouses financially until the divorce is final. It may be helpful at this time to prepare tentative budgets for each spouse for their new post-divorce living arrangements. Couples with children will also need to develop a parenting plan.
Mediation can be difficult and demanding. The first mediation session may be exploratory if some areas need to be worked out. Ideally, each spouse should focus on possible solutions. Think dialogue and not debate; consensus and not competition. It’s a good idea to set goals, but plan to negotiate, compromise, and abide by the results.
Generally, each spouse and their attorneys select a third party as a mediator. He or she may be an attorney (but is not allowed to give legal advice), a mental-health professional or other professional who has been trained in mediation techniques, divorce law and conflict resolution. There is usually a cost for the mediator’s services (usually less than litigation), which is typically split between the couple. Unlike judges, a mediator has no decision-making authority, but strives to help the parties identify issues to be resolved and develop options that satisfy them both as much as possible.
The mediation session itself can be structured to fit each case, but typically each spouse and his or her attorney are seated in separate rooms and the mediator shuttles back-and-forth with offers and counter offers as they work toward a settlement.
In most cases, at the end of each mediation session, the mediator will draft a memorandum of understanding which reflects the participants’ tentative agreement. This document will be sent to each party and their attorneys for review, revision and/or additions. Until the memorandum is signed, neither participant is bound by it. At the conclusion of all mediations sessions and revisions, a final memorandum, or Mediated Settlement Agreement (MSA), will be drafted and sent to both sides for final review and signing. Once signed, it will be submitted to the court for processing and approval.
Divorcing spouses are not required to have their attorneys present during mediation, but most prefer to have them participate in order to provide advice regarding their legal rights and responsibilities. Regardless, each spouse is strongly encouraged to make sure his or her attorney reviews any final settlement agreements or MSAs before signing such documents.
Mediation has many advantages for divorcing couples, however, mediation is not appropriate in all cases. This approach requires that both spouses commit to full and fair disclosure, and to engage in the process in good faith. If domestic violence, substance abuse, mental or emotional incapacitation is present, mediation may not be the best option. Mediation is not a place to coerce a partner or get around the law. Both spouses should feel they have equal bargaining power, and each should commit to communicating openly. Neither spouse should be domineering or controlling over the other; for example, when one party has little or no information about the family finances.
When it is successful, mediation provides an eloquent way for divorcing couples to resolve issues and find a way to move forward with grace and dignity.