What is Mediation?
Mediation, quite simply, is a formal settlement conference. Parties gather with their respective attorneys, and a neutral third party called a mediator. In family law, mediators typically use the caucus approach. This means that you and your attorney will not be in the same room as the other party and their attorney. The mediator will go back and forth between rooms taking offers, counter offers, coming up with potential solutions, conveying certain information, and pointing out what might happen in the event an agreement is not reached.
Why Do We Have to Mediate?
Most judges in Harris County require parties to mediate before hearings for temporary orders and final trial. Why? Because judges do not want to have to decide how parties should live without giving them a chance to come up with an agreement between themselves. Many times, mediation ends with an agreed order with terms by which both parties can abide. It is a lot less expensive in terms of time, money, and emotional costs to mediate as opposed to going to trial. Furthermore, a mediated agreement provides certainty. Judges and juries can be unpredictable.
What Happens if We Can’t Reach an Agreement?
Not all mediations end in an agreement. When it becomes clear that parties cannot come to an agreement, the mediator will declare an impasse. The mediator will then file a report with the Court saying that the parties showed up, paid the mediation fee, and could not come to an agreement.
Is a Mediator a Judge?
No. A Mediator is a third party neutral. Mediators do not decide who is right and who is wrong, and Mediators cannot order parties to come to an agreement. However, experienced Mediators can offer insight into how judges and juries operate, and offer creative ways to structure agreements that will work for both parties.
Mediators provide both sides with a reality-check. At times it may seem that the Mediator has taken the other party’s side. That is intentional, and you should know that the Mediator is likely doing the same thing in the other room.
What Happens if the Other Party is a No-Show?
It can be down right infuriating when you make the effort to prepare for mediation, take time off from work, make arrangements for childcare, sacrifice your budget to pay the mediation fee, only to arrive and learn that the other party just did not show up. Take a deep breath and pay the fee. This is a gift.
Here’s what will happen: the Mediator’s report will read something like this: “Party A showed up on time and payed the mediation fee. Party A was ready to negotiate in good faith. Party B was a no-show. Party B has not paid the mediation fee. Party A waited thirty minutes until it was clear that Party B was not coming, at which point I declared an impasse.”
Then, the report gets filed with the Court, i.e., the Judge. Polish your halo and make sure your attorney asks the Court to award you attorneys fees and mediation fees, as the other party wasted everyone’s time.
What Do I Need to Do to Prepare for Mediation?
- Relax. Remember that mediation is just a settlement conference. You do not have to come to an agreement, although it may certainly be in your best interest to do so. Get a good night’s sleep, as mediations can be emotionally draining.
- Have Breakfast. Make sure to have breakfast. While you might be looking at a half day mediation, many times mediation sessions will last a full day, and well into the evening. You do not want to lose energy and feel pressured to cave in due to hunger or exhaustion.
- Make Arrangements for Your Kids. If you have children, make sure that they are taken care of for the day. Mediation sessions can go over, and you need to be able to be there for the entire session. Have a trusted friend or family member pick them up from school and handle the evening routine. Knowing that your kids are taken care of, you will be better able to focus on the matter at hand.
- Think About What You Want. Chances are, you have had sleepless nights thinking about your family and your future, and how you are going to navigate a new normal. Make a list of the issues that are most important to you so you can communicate that with your attorney. Your attorney will discuss the possibilities and consequences, and negotiate to get the best result.
- Think About What You Don’t Want. Perhaps you don’t want your kids to have to talk to the Judge, or you don’t want to have to testify about certain delicate issues. Perhaps you really don’t want your kids to be around your ex’s new lovers. Perhaps you just really don’t want to sell the house. Figure out where your bottom line is regarding the issues that give you pause.
- Come Prepared. You and your attorney should be equipped with documentation. Depending on the particulars of your case, you will need different types of documents. Generally speaking, you will need anything to substantiate property issues (assets, liabilities, account numbers, appraisals, credit card balances, cash values of life insurance policies, etc.) and important documents relating to conservatorship and possession (school records, medical records, phone records, recordings, etc.). It is helpful to have the things that you would need at trial in order to show the mediator a little taste of what kind of a case you would put on at trial.
At the end of the day, you will either have:
- an agreement you can live with; or
- a better idea what the other party’s case will look like; and
- a ticket to court.