by Houston Divorce Attorney Sam M. “Trey” Yates, III
What is ADR?
ADR is the commonly used acronym for Alternative Dispute Resolution. So, what is Alternative Dispute Resolution? Black’s Law Dictionary defines it as a procedure for settling a dispute by means other than litigation, such as arbitration, mediation, or mini-trial. In the context of family law, an ADR process may involve a facilitator and two or more participants, depending on the complexity of the case and number of players. Mediation and Arbitration are the two most common forms of Alternative Dispute Resolution available. Today’s blog article will address common questions regarding mediation, and next week’s will discuss arbitration.
What is Mediation?
Mediation is a formal settlement session in which a neutral person trained in dispute resolution meets with the parties and gets them to talk about the case and their differences. Mediation is much like any other negotiation in that the parties are able to actively participate in a discussion to tailor the outcome that suits their particular needs. Mediation is a non-adversarial approach to conflict resolution, where the parties generally communicate directly. In mediation, a third person assists the parties with identifying options for settling disputes regarding child support, custody, visitation, spousal maintenance and support, division of property and assets, and division of debts and liabilities.
When is Mediation Required?
It is the policy of the State of Texas to encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures.
Many family law courts have adopted a mandatory mediation requirement in an attempt to resolve issues in dispute without the expense of a trial. Additionally, some courts require the parties to attend mediation prior to a hearing on temporary orders. The general exceptions to this are if there has been domestic abuse, or if an attorney files a motion and schedules a hearing to convince the judge that this particular case is not appropriate for mediation.
What Are the Benefits of Mediation?
Privacy, lower cost, and a quicker resolution are the hallmarks of mediation. Confidentiality is central to the process in order to allow the parties to communicate fully and openly without fear of compromising the position of their case in Court. Any communication relating to the subject matter of a dispute which is made by a participant during mediation is confidential and is not subject to disclosure. Further, the Texas Family Mediation Statute provides that all information and documents exchanged in mediation are confidential, except for those that would otherwise be independently discoverable outside of the mediation process. In other words, communications made during mediation may not be used as evidence against the participants in any judicial proceeding.
Additionally, mediation can assist the parties in resolving their issues much faster and less expensively than litigating disputes in the courtroom. Mediation allows the parties to direct the resolution of their issues in more personal and meaningful ways. Further, by negotiating the issues themselves the parties thereby maintain control over the outcome rather than placing the issue in the hands of a judge.
What is the Role of the Mediator?
The role of the mediator is to facilitate communication between the parties, assist them in focusing on the real issues of the dispute, and generate options for settlement. A mediator’s role is to remain neutral. The mediator cannot make any decisions for the parties nor can they impose their own judgment on them.
A mediator will bring the parties together and allow them to communicate regarding their particular issues. It is the mediator’s duty to facilitate respectful communication between the parties and assist in overcoming any obstacles to communication. Additionally, mediators are able to advise the parties about the tendencies of the judge in a particular court, and how the judge has been known to rule on a particular issue that the parties are facing. Texas statute provides for specific education and training requirements before a person is qualified to mediate a dispute. In Harris County, court appointed family law mediators are required to undergo additional training.
What is the Role of My Attorney in Mediation?
Although the mediator is a neutral party and mediation is a non-adversarial proceeding, each party should have their family law attorney by their side throughout the entire mediation. Furthermore, if any agreements are made during the mediation, the parties should have their respective attorneys review the agreement prior to signing.
What is the Outcome of Mediation?
Once the parties reach a settlement on some or all of the issues they should execute a binding written agreement. Once signed by the parties the written agreement is enforceable as a written contract. This document is often called a Mediated Settlement Agreement (MSA). Since a mediator cannot give legal advice, you should have your attorney review the agreements to ensure that they are in your best interests before signing the MSA. Additionally, even if the parties are unable to reach an agreement on every issue, you should at least try to reach settlement in as many issues as possible and submit these to the Court in the form of a Mediated Settlement Agreement.
What is Arbitration?
Arbitration is another ADR process available. Arbitration is a process similar to a trial where parties present their evidence and testimony. In arbitration, each party, by and through their attorney, present their position to an impartial person who ultimately renders a decision.
An arbitration is presided over by an independent third party who has no interest in the outcome of the dispute. This person is called the Arbiter or the Arbitrator. The Arbiter typically has specific expertise in the field in which the dispute has arisen. With an expert presiding over the dispute, the parties can benefit from the particular understanding and analysis of the facts an expert can provide.
When is Arbitration Binding?
Arbitration can be binding or non-binding and it can address all or a portion of the contested issues between the parties. Non-binding arbitration can be required by a court order, while binding arbitration is utilized only by an agreement between the parties.
If the parties stipulate in advance, the award or judgment of the arbiter is binding and is enforceable in the same manner as any contract obligation. If the parties do not stipulate in advance that the award is binding, the award is not binding and serves only as a basis for the parties’ further settlement negotiations. Binding arbitration takes away any control over the outcome from parties. Binding arbitration is not typically an ADR choice in family law cases for the reason that it puts the outcome completely in the hands of the arbitrator.
Arbitration and Family Law
Binding arbitration is not typically used in family law cases for the reason that it puts control of the issues into the hands of the arbitrator. However, as with all other areas of law, the right to arbitrate is nearly absolute. The most common use of arbitration in family law is in resolving drafting disputes or disputes involving the interpretation of a Mediated Settlement Agreement (MSA).
As in Mediation, you should have your attorney review the agreements to ensure that they are in your best interests before signing the MSA. Additionally, even if the parties are unable to reach an agreement on every issue, you should at least try to reach settlement in as many issues as possible and submit these to the Court in the form of a Mediated Settlement Agreement.
Sam M. “Trey” Yates, III is a Houston-based Board Certified Family Law Attorney and creator of The Guide to Good Divorce seminars for women. If you have questions about your Houston divorce, custody dispute, modification, or property division, please contact The Law Office of Sam M. “Trey” Yates, III, P.C. for a consultation.