Mediation is one method of “alternative dispute resolution,” or “ADR.” ADR is a popular alternative to traditional litigation and more divorce attorneys are recommending it for their clients. ADR is an approach which takes place outside of court. Mediation is one of the most flexible options because it is very informal compared to the strict rules and procedures that must be followed in court.
Mediation is a process by which two parties attempt to resolve their dispute with the aid of a mediator. Mediators can be lawyers or even retired judges, and are skilled listeners and communicators, two qualities that many quarreling parties struggle to maintain during a conflict. In the divorce process, a mediator will meet with both parties and their attorneys, and attempt to get to the root of the issues and find creative solutions that satisfy both parties.
Mediation has many advantages. For starters, there is the cost. Mediation can be significantly less expensive than litigating a divorce in court. This is because the cost to obtain a mediator is a one-time flat fee. Compare that to the cost of paying an attorney hourly to litigate a divorce, which may take months or even over a year before going to trial.
Mediation can be as short as a few hours and can stretch as long as the parties feel they need to resolve the dispute. Depending on the complexity of the case, mediators will schedule a time and request that the parties clear their schedule for however long they think it will take. In Tarrant County, most divorce mediations take half a day or one day.
Another advantage of mediation is the lack of restrictions on evidence and discovery (testimony, records, affidavits, etc.). Usually, attorneys on both sides will exchange documents beforehand, prepare inventories and financial summaries, and provide these materials to the mediator. This helps the mediator have a better understanding of the facts. By contrast, in court, there are extensive procedural and evidentiary rules which define and limit what evidence is admissible. In mediation, the process is informal, and the rules are relaxed.
In a traditional evidentiary trial before a judge or a jury, the divorcing spouses are exposed to one another in what can be a contentious hearing with zealous advocates demonizing the other side. Not so in mediation. The spouses will be separated, and the mediator will go between the two parties conveying offers and attempting to reach a settlement. Because the rules are relaxed, a party’s legitimate concerns, emotions, and perspectives can be voiced without fear of reaction from the other party or the other attorney.
Mediation is confidential. Unlike litigation proceedings, mediation is completely private, and parties may amicably solve problems without worrying about what the general public may see or read.
The informality, flexibility, and confidentiality of mediation leaves the parties free to mold their own solutions in creative ways. It also allows the parties to take ownership of their solutions, knowing they were agreed to, not forced by a judge. They are free to discuss multiple options and negotiate in a way that allows all parties to feel like they prevailed in the end. This is the hallmark of a successful negotiation. A little give and take goes a long way.
Mediation, unlike arbitration, does not have to be final. Many courts required the parties to at least attempt mediation in good faith. Many times, such as in property division cases, the parties choose mediation because it appears to be the cheapest and most efficient option. However, if the parties do not reach an agreement on all issues, then a trial before the court is still available.
A mediated settlement agreement (MSA) is an agreement reached by the parties and signed as a contract. The idea is that once it is signed by all parties, it becomes binding and irrevocable. At the conclusion of the mediation, the spouses will sign the MSA, which spells out the substance of the agreement. The terms of the MSA will then become incorporated into a final decree of divorce. Once a judge signs the decree, the divorce is entered and final.
Mediation might not be for everyone. A divorcing spouse might want his or her “day in court.” This allows the spouses to face one another and allow their attorneys to put on witnesses and cross-examine witnesses. However, the disadvantages are few.
If you are considering filing for divorce, or you have a pending divorce, the option is available to you. You’ve got nothing to lose. The attorneys at Hardy Law Group, PLLC, are experienced in representing clients in mediation and have achieved success for many clients. Whether your case involves custody issues, property, or both, contact us today for a free consultation.