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How Does Mediation Work?
Let's start out with the definition of mediation. Mediation is a process whereby the parties and their attorneys meet with a neutral mediator who has been trained in law and in the art negotiating a compromise and settlement agreement out of the parties. In other words, the mediator is there to aid the parties in reaching their own agreement. The mediated settlement agreement is not a decision by the mediator as to how the divorce should be decided; it is an agreement between the parties as to how the parties' issues are to be resolved. The mediator's function is to use the mediator's legal and negotiating skills to convince both parties that the mediated settlement agreement is in both of their best interests.
Usually what happens at mediation is both parties and their attorneys meet with the mediator at the mediator's office, or in many incidences in a special mediation center. Almost all mediators now immediately divide the parties into different rooms. Typically the mediator will start out with the Petitioner and will spend an hour or more learning about the particulars of the Petitioner's case. Many times the mediator will not even try to get an offer of settlement out of the Petitioner during the first meeting. Then the mediator will meet with the Respondent for a similar period of time. This way the mediator becomes completely familiar with the issues that exist between the parties. Then the mediator will go back and forth between the parties negotiating a settlement. Skilled mediators can make some very good suggestions to the parties to get the parties off dead center. Many times people go into mediation with the attitude of "my way or the highway." A good mediator can usually deflect this type of attitude by making suggestions for settlement that neither party thought of before mediation . If an agreement is reached at mediation then the mediator prepares a Mediated Settlement Agreement which is signed by the parties and becomes binding.
The people that typically serve as mediators are former judges, or highly experienced attorneys. In order to be a mediator either a former judge or an attorney must undergo substantial training in the art of negotiation and the ethics of mediation.
There are usually a few rules that go with mediation. First, everything that occurs at mediation is confidential and cannot be used in court. The mediator can never be brought into court to testify one way or another. Furthermore, the parties are barred by the court from stating in court what occurred at mediation. Secondly, when you're discussing your case with the mediator, the mediator is free to assume that whatever you tell the mediator may be discussed with the other side. However, if you have a certain piece of information that you believe critically shapes your case, and the other side does not have that information and you do not want them to learn about it, you should be sure and tell the mediator that you do not want the mediator to disclose that information to the other side.
As I pointed our earlier once you sign a mediated settlement agreement it is irrevocable and binding, and a party is entitled to ask the court to enter a final decree of divorce based upon the mediated settlement agreement. There are very limited circumstances where a party can set aside a mediated settlement agreement. Generally they involve very active fraud or the omission of substantial assets from the mediated settlement agreement. The simple fact that you got a bad bargain is not grounds to set aside the mediated settlement agreement. The simple fact that you don't like it, or that your mother, brother, or new lover does not like the mediated settlement agreement is not grounds to set aside a mediated settlement agreement.
Usually a mediated settlement agreement is a shorthand rendition of the parties' agreement. Afterwards the attorneys will prepare a Final Decree of Divorce and submit it to the court for entry by the court.
It is important to prepare for mediation. You should have a clear understanding of what the issues are, what your best case scenario would be, what your worst case scenario could be, and knowledge of the court where your case is pending. Typically prior to mediation I prepare a confidential mediation memorandum and send it to the mediator explaining the strengths and weaknesses of my client's case, our expectations, and any peculiar requirements. For example a number of years ago I represented a party that because of a medical condition was on very strong painkillers, and not always with it; her father happened to be a physician who was very close to her and I requested that he attend the mediation so that he could advise his daughter throughout the day and advise me concerning her condition. Since most mediators do not allow non-parties to be present I let the mediator know beforehand that I needed her father to attend.
Usually mediation is an all day affair, and frequently lasts late into the evening. Sometimes it is not possible to finish a case in one day. I think the longest mediation I've ever had lasted 4 1/2 days. The latest I've ever stayed at mediation is 1:30 a.m. -- for a mediation that started at 9:00 a.m. Needless to say knowing that it may be a long day, you should come to the mediation dressed comfortably and prepare to stay the entire day. Most mediators arrange to have lunch brought in so that once people come into the mediation, they do not have to leave.
Frequently parties have a tendency to blow up at the mediator. This is a horrible practice. The fact that your spouse sends the mediator down to your room with a ridiculous offer is no reason to go into a tirade against the mediator. Instead, I've found that most clients can really learn a lot when the mediator is presenting your spouse's offer or position. If the client will sit quietly and listen all the way through the mediator's presentation, the client and the attorney will frequently learn something about the other party's case that they did not know beforehand. Once the mediator has had an opportunity to present the entire offer then it is time to start explaining why the offer is not acceptable to you. If you will work through this in a logical fashion, and try to leave emotions out of mediation, I will guarantee you the mediator will really appreciate it. When the mediator is presenting an offer from your soon to be ex spouse, do not look upon the mediator as an enemy, but rather as your friend. Your job in mediation is to figure out how to use the skills of the mediator so that your spouse changes his or her mind, and accepts the position which is more in line with what you want.
Overall mediation has about an 80 percent success ratio. Because it has such a high success ratio, almost all courts now require that a case go to mediation before they will actually try a divorce case.
Texas requires that divorcing spouses try mediation before going to trial. Spouses can request a jury trial, but generally a judge decides the trial rather than a jury. Mediation is an ideal way to prevent the element of surprise that comes with taking a divorce case to trial. Many judges will tell you that a divorce trial has no winners, because the outcome is rarely in favor of just one party.
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