Divorce Settlement Tools
Mediation became a formally recognized settlement tool about 25 years ago with the enactment of a statute stating that the Texas courts encourage parties to settle their disputes without the use of court resources for trial of the issues. Mediation, arbitration and several other settlement vehicles were outlined as appropriate methods for resolving pending lawsuits.
The judges who handle divorce suits were among the first to promote the use of mediation. They did so by requiring the parties to participate in mediation before the lawyers would be allowed to request a trial date. By pushing the parties into mediation, the judges were confident that a considerable number of the pending lawsuits would be settled and that would free court resources – that has proven to be true.
Mediation – The Process
Simplistically speaking, mediation is a process involving a conference attended by the parties, their lawyers and a neutral person who serves as the mediator. The mediator in divorce cases is usually a lawyer with extensive experience in the field of family law. As a neutral person, the mediator’s objectives involve 1) determining the parameters of the dispute, 2) understanding the positions and objectives of the parties, 3) defining the resources available for use in resolving the issues, 4) outlining the various alternatives for resolution, 5) assisting with the negotiation of settlement terms and 6) drafting an outline of the parties’ agreement.
Advantages Of Mediation
From the perspective of the parties, mediation offers a unique and valuable opportunity.
If the parties proceed to trial, they will place their futures and the destinies of their children in the hands of a stranger (a judge) who will have very limited information to use as a basis for his/her decision. Further, the decision of the judge will be governed by the parameters of the Texas Family Code and the personal philosophy of the jurist.
Simply stated – There are some things the judge cannot do and there are some things the judge will not do.
Almost inevitably the best solutions in family law matters involve crossing some of the “can’t do” or “won’t do” lines. That means the decision by the judge will not be the best available for the parties and everyone will be disappointed in some degree with the orders imposed upon them. The significant advantage of mediation over trial is that ability of the parties to formulate an agreement that crosses the “can’t do” and “won’t do” lines resulting in a deal that is better than can be expected from the court.
What To Expect In Mediation
The following notes are taken from memos that are sent to parties and their attorneys by Robert Matlock when he serves as a mediator:
Things to Know Before Mediation
Joint & Separate Discussions:
Usually the mediation conference begins with the lawyers and parties together. The mediator will outline how the mediation process works, have the parties sign the Agreement To Mediate, and talk in general terms about the issues to be resolved.
After the joint conference, one party and that party’s lawyer will usually move to another room. The mediator will then move from one room to another to talk with the attorneys and parties about fashioning an agreement.
Mediation takes time. Usually the differences that led to litigation are complex and developed over a lengthy period. It is very rare that acceptable resolutions for those conflicts can be formulated swiftly.
Bring a book, magazines, a laptop with work/video games or some other means of passing the time while the mediator talks with the other party and lawyer.
Mediation is not a formal proceeding. Dress comfortably and casually.
Tension is always part of litigation, but control of stress is necessary to work productively toward a solution. Remember to take a few deep breaths and calm down when tension levels rise.
Listen To Alternatives:
Finding a solution requires looking at alternatives – the good and the bad. Discussing alternatives, including those that are unacceptable, is part of the process and evaluating them is imperative.
Decisions Need To Be Made:
An agreement is the product of decisions by the parties. Both parties will be called upon to make decisions.
The Mediator Is Neutral:
The mediator’s job is to bring the conflict to an end by assisting the parties in crafting an agreement. The mediator is neutral – the decisions and agreements are made by the parties.
Mediation requires both parties to make a good faith effort to define and settle the issues. Keep in mind that the problems can be solved.
Purpose Of Mediation:
Mediation is a discussion process intended to assist the people involved in litigation to resolve their differences and reach a resolution of the lawsuit. If an agreement is made through mediation, it is usually put into the form of a court order and signed by the judge.
- Voluntary – either person is free to halt the discussions at any time.
- Confidential – the statements made by the parties to the mediator during settlement discussions are not to be brought to the court if a trial of the case is later necessary.
- A search for alternatives – the mediator will endeavor to offer avenues toward settlement that may not have been previously considered by the parties.
- Binding – the court can enforce any agreements made by the parties.
Mediation Is Not:
- A substitute for a trial – the mediator will not act as a “judge” to pass upon the merits of either party’s position.
- A substitute for thinking – the mediator will not make decisions for the parties.
- A method to stall the lawsuit – such a ploy will be quickly discovered and one such incident will probably preclude any later settlement negotiations.
- The only means of resolving the lawsuit – if an agreement is not made, the parties may settle at a later date or present the disputes to the court for resolution.
Agreements made during mediation will usually be incorporated into a court order. If so, the judge will be asked to enter the order and make the terms of the order binding on the parties. Therefore, it is important to –
NEVER MAKE AN AGREEMENT UNLESS YOU INTEND TO LIVE UP TO IT.
Experienced lawyers can and do advise their clients concerning what they can expect a judge to do in their particular case. However, even the best of attorneys refer to trial of a lawsuit as “rolling the dice” because there can be no certainty concerning the judge’s final decision. The mediation process offers an opportunity to resolve the issues in a manner that is acceptable to the parties and avoids the uncertainties and expense of a trial.