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To mediate or not to mediate – That is the question

On Behalf of | Jun 6, 2022 | Divorce

Here are some basic facts about mediation.

Every marital relationship is unique; therefore, every divorce case involves unique issues.

Every parent-child relationship is unique; therefore, the issues are different in every custody case.

The Texas Family Code includes standard schedules for child support payments, child possession periods, alimony payments and other types of orders.

Standard schedules are not the best solution for unique situations.

Basic Question: Can mediation help the parties get to the “best solution” for their case?

What is mediation?

Mediation is a negotiation process guided by a neutral person who assists the parties in defining their areas of conflict and constructing agreements that resolve their disputes.

How is mediation different from a trial?

Mediation is a negotiation process with the objective being an agreement. A trial is a conflict process with the objective being a court order favorable to a particular party.

How is mediator different from a judge?

The mediator does not make decisions – he/she helps the parties make decisions. The judge does make decisions – the parties are not involved in making the judge’s decisions.

Is mediation a good idea?

The short answer is “Yes, a settlement is always better than a trial”.

A settlement agreement is better than a trial because settlement –

  1. costs less,
  2. protects the parties’ privacy,
  3. is based on terms set by the parties rather than a stranger,
  4. allows the parties to customize the terms of the deal,
  5. avoids the “one size fits all” terms of the Family Code,
  6. is less traumatic for the parties and the children,
  7. establishes a step toward future cooperation between the parties,
  8. establishes a positive example for the children.

Is there a “downside” to a trial?

Yes. There are significant limitations on what can happen in a trial. There are some things the judge CAN’T DO, there are some things the judge WON’T DO and there are some things the judge WILL DO.

Explanation:

The judge CANNOT enter orders that violate the Family Code.

The judge WILL NOT enter orders that are unworkable.

The judge WILL enter orders that comply with the Family Code.

Result:

Standard orders are usually not the “best solution.” An agreement that crossed some of the “can’t do” and “won’t do” lines would have served the parties and children better.

Is it possible to reach a “best solution”?

Yes. Keep the answer to “Is there a downside to a trial?” in mind.

The mediator encourages each party to describe what he/she believes would be the “best solution” for the issues in their case. Inevitably, some elements of each party’s version of the “best solution” includes obligations that will be out of bounds if the case goes to trial. The mediation process allows the parties a confidential forum in which to negotiate and agree upon enforceable obligations related to the specific issues in their case.

Bottom line – mediation offers the parties a good shot at the “best solution” for their case.

To Mediate Or Not To Mediate – That Is The Question.

Answer: Yes, mediate.

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