The trial of a divorce case narrows the field of possibilities for the parties and their children. There are some things the judge cannot do because of limits imposed by the law. Likewise, there are some things the judge will not do for policy reasons.
Why is it important to recognize these limitations?
Because — in virtually every case, the best resolution of the issues involves crossing some of the “Can’t Do” and “Won’t Do” lines. Simply stated, mediation gives the parties the opportunity to avoid the boundaries of trial by structuring an agreement that suits their needs and those of their children.
Mediation is a form of alternate dispute resolution — an alternative to a trial in court. The mediator is a neutral third-party who is selected by the parties’ lawyers or, in some cases, is appointed by the court to conduct a settlement conference. The statements made and information presented during the conference are confidential and will not be released to other persons unless agreed upon by the parties. Under the guidance of the mediator, the parties and their lawyers work their way through the issues in the case and construct a settlement agreement.
The judges have made mediation a required step in the divorce process because they know: 1) the odds are very good that a skilled mediator can assist the parties in structuring a settlement agreement and 2) the settlement terms will be specifically designed to deal with the issues in their case.
Some of the most important issues in divorce suits are related to children. The Family Code includes provisions related to parental rights, child possession schedules, calculation of child support, and other “guidelines” for orders concerning children. When a case goes to trial, the judge will look to the Family Code guidelines in deciding what orders dealing with the parent-child relationships are appropriate. In mediation, the discussions are focused on the needs of the child and agreements are designed to serve their best interests.
The mediation process allows the parties to address their issues in a fashion that is less adversarial than a trial. With the help of the mediator, the parties and their lawyers explore alternatives for settlement, including terms that are not likely to be forthcoming if the case goes to trial. By examining the positive and negative aspects of each settlement proposal, the mediator assists the clients in evaluating their priorities and the viability of the settlement offers.
How can an attorney help with mediation?
The lawyer’s job in mediation is significantly different than it is in a trial. In the courtroom, the lawyer is an advocate for his/her client. In the mediation setting, the attorneys provide legal advice concerning the strong points and weak points of the case, knowledge of the judge’s philosophy concerning certain issues, and the advisability of compromise.
It’s important to prepare with your attorney prior to mediation, so that you can make the most of your time and be certain to address those aspects that mean the most to you. Think about what you want – not just in the moment but for the future. Mediation is generally conducted over one full day, but can go longer and even into multiple days. Preparation in advance will help shorten the time you spend in mediation. In the end if you can’t come to an agreement in mediation, you can still take your case to court, and turnover the decision-making to the Judge. If you do reach an agreement in Mediation it is binding on both parties, so it is important to come prepared, well-rested and ready to work so that you get the best result possible. It is also possible to resolve only a part of your disagreements in Mediation and reserve the rest for the Court.