Frequently asked questions.
What Is Mediation?
Mediation is a non-adversarial dispute resolution process that takes place away from the courtroom. In a divorce, you and your spouse, either with or without your attorneys will meet to negotiate the terms of your divorce in conversations guided by an impartial mediator. Mediation can also be used to resolve other family law issues. The public policy of Texas is to “encourage the peaceful resolution of disputes” and so many suits are automatically referred to mediation.
Texas Civil Practice and Remedies Code 154.023
What Does a Mediator Do?
Mediators are specially trained professionals and experts in collaborative problem-solving who facilitate discussions between the parties to help them reach a settlement. They don’t offer legal advice but can provide general information about the legal process to help you and your attorneys reach a workable solution.
Why Do People Choose Mediation?
It is not unusual to feel like a divorce or other family law dispute is out of your hands, particularly if the courts are involved. Mediation gives spouses greater control over their divorce as well as more privacy. In a process that can feel overwhelming and personal, reaching an agreement outside of a courtroom can be a viable option for many. Benefits of divorce mediation include:
Directing the Process and Outcome: You decide the settlement of your dispute rather than leaving it to a judge.
Saving Costs and Time: Mediation is cheaper and faster than litigation, allowing you to move on with life sooner.
Preserving Relationships: Protect important family relationships and avoid putting children through the stresses of litigation.
Keeping Things Simple: If you and your spouse can agree on the terms of your divorce, mediation offers a straightforward, uncomplicated approach.
Finding Creative Solutions: Mediation allows you to find constructive and creative solutions that are better suited to your individual needs.
Statistics show that divorce cases that are decided by the court ultimately have petitions filed by one of the parties for modification of the divorce decree in 80 percent of the cases. That statistic indicates that the parties are not happy when the terms of the divorce decree are decided for them by the court.
One of the advantages of a successful mediation is that the terms of the divorce are decided by the divorcing couple. It is their own agreement, and that is why a much smaller number of mediated cases result in motions to modify the divorce decree. That is to be expected, since the couple knows more than anyone the terms of the divorce that will best work for them.
What Types of Cases Are Mediated?
Most civil cases can be brought to mediation. This includes family law cases, landlord tenant cases, probate cases, consumer protection cases, etc. If reconciliation is a possibility, the courts encourage mediation before you file a lawsuit. Examples of cases that have been mediated:
Products liability
Personal injury and wrongful death
Employment law
Medical malpractice
Third and first party insurance claims
Homeowners and commercial building claims
Construction defect
Premises liability
Professional and business partnership/corporate dissolutions or sales
Family law
Texas Tort Claims and Federal Tort Claims
Condemnation and valuation of land
Estate contests
Probate
Civil rights
Farm and ranch
Cemeteries and funeral homes
While mediation has many benefits, it may not be suitable for all situations. For example, in cases of domestic violence or child abuse, mediation may not be the best option.
Texas Civil Practice and Remedies Code 154.002
What Are the Five Steps of Mediation?
Knowing what to expect from mediation in Texas can help you decide whether or not it is the right choice for your unique situation. Mediation typically includes five steps:
Opening Statements: The mediator introduces everyone, explains the process, and establishes ground rules. Each party then presents their perspective on the dispute.
Joint Discussions: Parties directly communicate with each other about the issues, guided by the mediator. The purpose of this stage is to foster understanding and clarify positions.
Caucuses: The mediator might need to meet privately with each party to discuss their concerns and options or to negotiate. This approach provides a confidential space for parties to explore potential solutions without pressure.
Negotiations: With the mediator’s assistance, parties begin to negotiate directly, respectfully addressing each issue and working effectively toward an agreed upon solution.
Settlement: Once an agreement is reached, the terms are documented. This ensures that both parties understand their commitments and responsibilities moving forward.
What Are the Rules for Mediation in Texas?
Mediation is typically voluntary unless it’s court-ordered or required by a contract provision.
Anything discussed during mediation is confidential and cannot be used in future litigation.
The mediator must remain neutral and impartial throughout the mediation process. They do not make decisions for the parties but rather facilitate a conversation to help them come to a resolution.
The parties involved in mediation have the right of self-determination, meaning they control the outcome and any agreement reached. A mediator cannot force a party to accept a settlement.
The mediator does not render decisions on the merits of the case. Instead, the mediator facilitates a conversation between the disputing parties and helps them agree on a solution.
Mediators must disclose any potential conflicts of interest that may influence their neutrality.
The mediator or any party can terminate the mediation at any time for any reason.
Agreements are documented in writing as a memorandum of understanding (MOU). If your attorney is not present at the mediation, you can take the MOU to them to have it reviewed before it is drafted into the final divorce decree. If both parties want to have an agreement that is immediately binding and cannot be changed by either party, they would then ask for a mediated settlement agreement (MSA). This agreement is binding, and Texas courts generally enforce it as they would any other contract.
Many Texas courts require parties to attempt mediation before a case goes to trial. If the parties don’t reach a mediation agreement, they can proceed to trial.
Typically, the parties split the cost of mediation. If the mediation is court-ordered, the court may specify how to divide the cost.
The parties should attend the mediation in good faith and participate actively. In some instances, if mediation is court-ordered, the court may have specific rules regarding who must attend.
Will the Mediator Hear Evidence and Make a Ruling Like a Judge?
No. Mediators are not judges, and they do not make rulings. The mediator has no authority to make either party do anything.
Is Mediation Legally Binding in Texas?
It can be, if both parties want to. Mediation agreements are legally binding only if they are properly drafted and signed by both parties as a specific document called a Mediated Settlement Agreement (MSA). Otherwise, the agreements made during mediation are drafted as a memorandum of understanding (MOU) and both parties can take it to their attorney to review and draft a final divorce decree. If either party objects after their attorney reviews it, either the attorneys can agree to make changes, or you can schedule another mediation session to discuss the issue. If both parties and their attorneys agree to the terms of the MSA, they will sign the document. According to the Texas Family Code Section 6.602, the MSA must include a prominently displayed statement that the agreement is not subject to revocation, and it must be signed by each party and their attorney, if any.
How Long Does Divorce Mediation Take?
The length of mediation varies significantly from case to case, but on average, a divorce with both financial and child-related issues takes eight hours of mediation. The more prepared, honest, respectful, and cooperative the parties are, the less time the mediation will take. And if there are substantial or complex issues involved, then mediation will naturally take longer. A divorce mediation between two people without children might take 4-hours, if both parties are in agreement.
How Much Does Mediation Cost in Texas?
The cost of mediation is often between $2,000 and $8,000, but it can vary widely depending on how long it takes to resolve your particular case. A mediator may charge different rates depending on whether you need a full day, one or more half-days, or shorter sessions by the hour. If you are also represented by an attorney, then attorney’s fees will also apply for their time spent at the mediation and advising on your case.
Who Pays for Mediation in Divorce in Texas?
Mediation is generally paid for by both parties to help eliminate any concern that one party may receive preferential treatment during the process.
Do You Need a Lawyer for Mediation Before You Can Hire a Mediator to Mediate Your Divorce?
No, you and your spouse do not each have to hire a lawyer to attend mediation. If both parties attend without their attorneys, we do recommend that you consult with a family law lawyer before finalizing any legal documents. You will never be asked to finalize anything before being able to consult with an attorney.
Are Mediators Lawyers?
To mediate in Texas, one does not have to be a family law attorney or even an attorney at all. There is a certification process that qualifies someone to mediate disputes. In fact, a mediator is not allowed to provide legal advice, so even an attorney mediator will not be able to answer legal questions. Because our mediators have experienced the process from both sides, we can make sure you’re thoroughly prepared to take part in mediation sessions so you can achieve the best possible outcome for you and your family.
Does a Mediator Give Legal Advice?
No. The mediator will not and cannot give you and your spouse legal advice. The mediator is not hired as an advocate for either party. Instead, the mediator facilitates the settlement discussion and helps you and your spouse problem-solve so that you can reach an agreement.
What Is the Difference Between a Mediator and an Arbitrator?
A mediator does not have the authority to make decisions for the parties involved: Their role is to facilitate communication between the parties and help them reach an agreement voluntarily. In contrast, arbitrators do have the authority to make the final decision regarding a dispute. Arbitrators examine the evidence, listen to testimony from each party, and then render a final decision on the matter. This decision can be binding or non-binding, depending on the agreed-upon terms. At Meet in the Middle Mediations, we do not provide arbitration.
Texas Civil Practice and Remedies Code 154.027
What Is the Difference Between a Mediator and a Litigator?
A mediator acts as a neutral third party, facilitating communication between disputing parties. Litigators, or trial lawyers, represent their clients in court and advocate for a certain outcome. The key difference between a divorce attorney and a mediator is that an attorney is hired to work on behalf of one party, while a mediator is an impartial third party.
Is Mediation Confidential?
Yes. All communication in mediation is confidential. The purpose of confidentiality in mediation is to allow the parties to freely discuss negotiation possibilities with the mediator. The rules of mediation prohibit either party from calling the mediator as a witness at trial or using any of the negotiation dialogue as evidence at the trial. Consequently, neither party needs to be concerned about whether they are harming their case should the mediation fail to result in a settlement.
What Is the Success Rate of Mediation?
Approximately 80% of divorcing couples who go through mediation are able to reach a settlement agreement.
Can Mediation Work if My Spouse Is a Narcissist?
Mediation can work in situations where one or both spouses have a high-conflict personality. One option would be to conduct the mediation via Zoom. In that way, the mediator will be the go-to person between the two parties and you won’t be required to communicate with them directly.
What Happens if We Can’t Agree on Anything During Mediation?
If you cannot reach an agreement during mediation, your options are:
Schedule Another Mediation: Disputes sometimes require more than one mediation session to settle. If the dispute is not resolved during the first session, it may be beneficial to schedule another.
Reach a Partial Agreement: Should the disputing parties agree on some, but not all, of the issues, they can document the agreements and resolve the remaining issues during additional mediation sessions or in court.
Attempt Another Alternative Dispute Resolution: Disputing parties can pursue a different form of alternative dispute resolution, such as arbitration, if mediation fails.
Litigation: If parties cannot agree during mediation, they might decide to proceed to court. You must know that in court, decisions will be made by a judge or jury, and the outcome is almost guaranteed to not be as satisfactory to either party as a negotiated solution.
How Much Will a Jury Trial Cost?
Let’s be frank. A jury trial won’t be cheap. It is the most complex type of hearing that you can have in civil court. If you want an experienced attorney as an ally and to represent you through your jury trial, it will cost you. Additionally, due to the costs associated with jury trials, if one party has access to substantially more liquid funds or assets than the other party, the requesting party can use the threat of a jury trial as a weapon.
What do we mean by using it as a weapon? Requesting a jury trial could be used as leverage against a party that cannot afford to have a jury trial. Retainers for a jury trial typically start at $25,000-$75,000. Depending on how long the case will take and where you are at in the process, the case could easily cost more.
Can I Use Mediation in My Divorce?
Yes. If both parties agree, or by order of the court, the court may refer a divorce case to mediation.
At What Point in the Divorce or Custody Process Do We Have to go to Mediation? Do We Have to File Suit First?
You can go to mediation before or after you officially file your petition for divorce. The court may order you to go to mediation once you have filed, or you and your spouse may decide to attend mediation before your divorce decree is finalized.
Do Both Parties Have to Abide by the Mediated Settlement Agreement in a Divorce?
A mediated settlement agreement for a divorce is binding if both parties agree that it will be binding. The agreement must:
state, in bold typeface, capital letters, or underlined, that the agreement is not subject to revocation,
be signed by both parties, and
be signed by the party’s attorney, if any, who is present at the time the parties signed the agreement.
What if the Court Orders Mediation for my Divorce and I Do Not Want to Go?
You must go to mediation if the judge orders it.
A party can object to mediation if there have been incidents of family violence against the objecting party. The objecting party must object prior to the final mediation order and file a written objection to the referral of mediation.
I am Afraid of My Ex-spouse–Do I Have to go to Mediation?
If there has been a proven history of family violence or you fear for your safety, you will not be required to attend mediation face-to-face. The mediation may be held in separate rooms where you do not have to have face-to-face contact with them or it can be done via Zoom videoconferencing.