Steering You Toward Your Best Options

Think long and hard about mediation for your Texas divorce

On Behalf of | Dec 7, 2018 | Divorce

Are you considering ending your Texas marriage? Have you thought about the many difficulties inherent in divorce? Do you want to keep your family’s business private, without having your so-called “dirty laundry” aired in an open court? Are financial concerns an issue for you, particularly the expense involved in a protracted, messy, contentious divorce that drags out for months or even years? If you answered “yes” to any of these questions, there might be a better way to dissolve your marriage: mediation.

What is mediation?

Through the onslaught of media coverage, television programs, movies and print sources, most people are familiar with the term “mediation,” and that it can be used to resolve legal disputes in lieu of a trial. What is less well-known, however, is exactly what the process entails and how it actually works.

Mediation involves the parties working together to craft solutions with the aid of a neutral (impartial) third-party known as a mediator. The mediator is, essentially, the “referee” of the proceedings. He or she doesn’t make any decisions on behalf of the couple, and has no authority to make the participants accept any sort of settlement. This is unlike a judge, who not only will decide the outcome of the case, he (or she) has the legal authority to force the parties to accept his decisions under threat of being found in contempt of court; this is not to say that parties don’t have the right to appeal a judge’s ruling, but they are still bound by the terms of a court order and could face civil sanctions for non-compliance.

Instead of deciding things for the parties, the mediator works with them to craft a settlement that best meets their needs and will fit into their lives. Again, the mediator is much like a referee in that way. The parties can each make suggestions about possible resolutions, then the mediator helps find common ground so that the process keeps moving forward.

How is mediation different?

Although parties have the right to each be represented by their own counsel during mediation – in fact, it is recommended that they have separate family law attorneys at their side – it is a less formal process than family court is. There are procedures and ethical guidelines set forth by the Texas Mediator Credentialing Association to which mediators must adhere, but those are more basic than the rules of court.

Another way in which mediation is different is that the proceedings are kept confidential. Family court matters are, by their very nature, public. Things said in court become part of the public record unless steps are taken to seal them and keep them private. With very few exceptions, anything said in a mediation setting is kept strictly confidential (see Texas Civil Practice Code Section 154.073). That alone is reason enough for some families to choose mediation or another alternative dispute resolution method: they want their private family business to remain private.

Furthermore, mediation is typically seen as a more cost-effective solution. Yes, parties still incur attorney expenses, filing fees and other related costs. However, since mediated settlements usually occur in a much shorter time-frame than litigated ones, the overall cost is lower from both a monetary standpoint and from the perspective of the amount of time spent in court or haggling back and forth over minutiae. Contentious discourse like that is the reason why court proceedings can easily drag out for months or even years. Having the mediator there to oversee the proceedings keeps the parties in check and focused on their common goal of resolution, something that can easily be forgotten in a courtroom setting.

Putting mediation to work in a family law setting

As previously stated, mediation is uniquely suited to handle all manner of family law-related disputes. Why? Because the mediator is specially trained to work with the parties in a way that takes the volatility out of the process. Mediation is a neutral process, meaning that it works best without the influence of emotional entanglements. The mediator guides the proceedings in such a way that the parties can look past their hurt feelings, fear for the future, anxiety and grief in order to focus on the outcome and starting a better life for themselves once the dispute is resolved. This is vital when addressing emotionally charged situations like child custody, divorce property division, child support and alimony.

Mediation in divorce

Unless there are circumstances involving domestic abuse, violence or neglect, the State of Texas encourages divorcing couples to at least attempt mediation with regards to child custody and visitation disputes prior to bringing the case to court. This doesn’t mean that they parties must settle the matter in mediation, or that the mediator can force them to accept a proposed agreement, only that they try to resolve their issues in a non-adversarial manner before proceeding to litigation. For more information, see Texas Civil Practice Code 154.002.

That being said, mediation can still be very helpful if a divorcing couple has no children. Mediation is a good setting in which to air private financial matters (under the cloak of confidentiality, of course) to reach a property division settlement. With the mediator’s guidance, the parties can devise property settlements that meet their unique needs, ensure an equitable resolution and will best suit them now and into the future.

For example, it could be important to the wife that her family’s ancestral home and surrounding land remain with her, so she might be willing to forego a portion of her husband’s income earned during the marriage in exchange for the home. Mediation offers the freedom to propose such options that may be considered a bit unorthodox according to traditional property division “guidelines” all while in a setting where privacy is of the utmost importance.

Mediation for child custody and visitation disputes

Mediators are ideally situated to help divorcing parents handle disputes regarding the custody (also known as “possession”) of their children as well as the amount of parenting time (visitation) the other parent should have with the kids. The mediator remains impartial as the parties present their arguments, suggestions or ideas for the best custody and visitation arrangements, then helps the parties find common ground upon which to build that will yield the best possible solution for themselves and the children.

This is all done not by forcing the parties to accept the mediator’s decision, but instead by:

  • Reminding the parties that their children are the priority
  • Focusing on how various outcomes for custody/proposed parenting plans will impact the children
  • Guiding the parties to look beyond the present dispute to see how the children will fare in the future
  • Encouraging the parties to work together to best meet their children’s needs

Like a judge, the mediator’s focus is on the “best interests of the children,” but the mediator doesn’t impose his or her will upon the parties like a judge would. The mediator’s actions are all aimed at keeping open lines of communication between the parties, ensuring the proceedings are amicable, and focusing on the proverbial light at the end of the tunnel.

By encouraging the parties to work together to find common solutions, the mediation process can get their new co-parenting relationship off on the right foot, on a basis of cooperation and civility. The tools learned in mediation will be vital for years to come as they co-parent their children while living separate lives.

Getting started with mediation

If you are considering mediation as a method to resolve your divorce-related disputes, then you should discuss the issue with your divorce attorney. It may be possible for you and your spouse, through mediation, to quickly reach a workable settlement that protects your interests, meets your needs, saves you money and lets you get started on the next chapter of your life as soon as possible. For more information, speak with one of the experienced family law attorneys at the Grapevine, Texas, law offices of Teller Law Firm, P.C.