MEDIATION

 

The traditional legal system is an adversarial process. Attorneys are advocates for their clients and are supposed to zealously represent their clients, even to the detriment of the opposing party. At the end of the process often one party ends up a winner and the other a loser. Because emphasis is on winning, the adversarial system can become quite draining financially, spiritually, and psychologically to both parties.

 

Several years ago, a number of lawyers, judges, psychologists, psychiatrists and counselors began to recognize that many couples going through a divorce did not really belong in an adversarial system. With the advent of "no fault" divorce and the recognition that children need both parents after divorce, a movement developed to try to make the divorce process a constructive process for establishing a framework for a way of life after marriage. The concept of family mediation was born.

 

Mediation is a forum in which an impartial person, the mediator, facilitates communication between the parties to promote settlement and understanding. A mediator is trained in law, psychology and counseling. A mediator will not impose the mediator's own judgment for the parties' judgment. Instead, a mediator will facilitate the development of the parties settlement. Mediation helps reduce acrimony.

 

Mediation is particularly suited for couples with children. Mediation may help to protect the children from being caught in the middle of conflicts, reduce parental disputes, help parents understand and tolerate their value differences, and build the foundation for parental cooperation after divorce.

 

Fort Bend County family courts require that the parties mediate before a Temporary Orders hearing involving custody of a child and again before going to trial.

 

A mediated settlement agreement is binding and may not be revoked.

 

Mediation is encouraged in Texas and is, by far, the most popular form of Alternate Dispute Resolution (ADR). With mediation, the parties and their attorneys will jointly hire a trained, experienced neutral attorney- the mediator- who is typically paid equally by the parties. If the parties cannot agree on which mediator to use, the court can appoint one. The parties agree to a time, date and place for the mediation.

 

Mediation generally commences with the mediator conferring with both attorneys in a conference. The purpose of this conference is to educate the mediator on the factual background of the case, the disputed issues, and each party's position as to those issues. Mediators prefer to start the actual negotiations without lengthy delay.

 

The mediator will then begin to work with each side individually to develop offers and counter-offers, moving back and forth between the parties until a settlement offer agreeable to everyone is written down and signed as part of a Mediated Settlement Agreement (MSA). A mediator cannot force a party to sign an MSA. However, once signed, the MSA is binding on all parties and only in rare circumstances can an MSA ever be set aside. After all parties, attorneys and the mediator have signed the MSA, the MSA is presented to the judge for his/her signature as a short-hand rendition of the settlement which will, in turn, form the basis for the actual Decree of Divorce and other necessary court orders.

 

The mediation process is confidential and testimony regarding events occurring during mediation is inadmissible in court. The mediator cannot be called to testify at trial.

 

Thanks to John K. Grubb, Attorney at Law, Houston, Texas, for his agreement to allow me to use some of his thoughts and also to the Family Law Client's Essential Handbook, published by the Family Law Section of the State Bar of Texas.