Mediation? What’s that?

You should know that, if your case arises under the Texas Family Code, the odds are high that you will be ordered to go to mediation before you can proceed to trial. When this happens, you should have a basic idea of what mediation is, and what it is not.  Mediation has the potential to be a great benefit to you and really has little, to no, downside.

Mediation is an informal process, facilitated by a mediator, designed to bring about a settlement of your case. Mediators are typically, but not always, attorneys with experience in the area of law in your case. In a family law matter, this would be a mediator who has familiarity with divorce, custody, support, property division, and other issues that frequently arise in divorce. Normally, the parties and their attorneys will travel to the mediator's office for the mediation session, which can last a half day, a full day, or even longer in high-conflict or complex cases. The mediator is paid a fee by each party.

The mediator will meet with each side separately. Usually, each side has their own conference room and the mediator travels between rooms, discussing the strengths and weaknesses of the positions of each side and trying to bring the parties together. Mediation can be very useful, because it allows the parties to create their own solution, rather than having one imposed by court order, and allows for creativity and innovation. If an agreement is reached, it is reduced to writing and signed by all parties and attorneys. It is then referred to as a mediated settlement agreement and, for most purposes, the case is over except for the entry of an order that reflects the terms of the mediated settlement agreement. If no agreement is reached, the case continues on and the court is merely informed that the parties attended mediation, but were not able to reach an agreement.

Mediation is not a substitute for trial. The mediator cannot, and will not, order the parties to do anything, or to accept any terms of settlement. The mediator is not the judge and doesn't decide any of the issues in the case. So, truly, nothing bad can happen at mediation. Either the case settles, as well over 90% do in mediation, or it continues on to trial. So, when your case is ordered to mediation, enter it with an open mind and a willingness to consider different solutions to the issues in the case. You may very well leave the session with a mediated settlement agreement and the peace that comes with it.