Divorce

What Is Mediation?

The goal of mediation is to use the assistance of a neutral third party to reach an agreement that is acceptable to both the parties.  It helps both parties walk away with a satisfactory outcome, without the financial and emotional cost of a court case.

The mediation process consists of a mutual endeavor.  Unlike in negotiations (where parties are often entrenched in their positions), parties to a mediation usually seek out mediation because they are ready to work toward a resolution to their dispute.  The mere fact that parties are willing to mediate in most circumstances means that they are ready to “move” their position.  Since both parties are willing to work toward resolving the case, they are more likely to work with one another than against one another (this happens in a typical court setting).  The parties thus are amenable to understanding the other party’s side and work on underlying issues to the dispute.  This has the added benefit of often preserving the relationship the parties had before the dispute.

Can Mediation Help Me?

Virtually any type of case can be mediated.

Examples included situations where issues arise out of contracts, partnership dissolutions, divorce, workplace conflicts, personal injury, sexual harassment, landlord-tenant relationships, discrimination, collections, and more.

What Is The Role Of A Mediator?

The role of a mediator is to provide guidance during discussions in an effort to resolve pending issues.  The mediator does not represent either party and cannot provide legal advice.  A good mediator is trained in conflict resolution and in working with difficult situations.  The good mediator is likely to work as much with the emotional aspects and relationship aspects of a case as he or she is to work on the “topical” issues of the matter.  The mediator, as a neutral, gives no legal advice, but guides the parties through the problem solving process.  The mediator may or may not suggest alternative solutions to the dispute.  Whether he or she offers advice or not, the trained mediator helps the parties think “outside of the box” for possible solutions to the dispute, thus enabling the parties to find the avenue to dispute resolution that suits them best.

Do I Need An Attorney?

No.  Mediation can occur with parties who are with or without attorney representation.

If your specific mediation case requires filing of court documents / forms, we at GP Schoemakers PLLC are licensed by the Texas State Bar, and therefore can help you file any court documents.

What Is The Difference Between A Court Case And Mediation?

Mediation offers multiple and flexible possibilities for resolving a dispute and for the control the parties have over the resolution.

In a case filed in court, the parties will obtain a resolution, but a resolution thrust upon the parties by the judge or jury.  The result probably will leave neither party to the dispute totally happy.

In mediation, on the other hand, the parties have control over the resolution, and the resolution can be unique to the dispute.  Often, solutions developed by the parties are ones that a judge or jury could not provide.

Therefore, mediation is more likely to produce a result that is mutually agreeable, or win/win, for the parties.  And because the result is attained by the parties working together and is mutually agreeable, the compliance with the mediated agreement is usually high.  This also results in less cost, because the parties do not have to seek out the aid of an attorney to force compliance with the agreement.  The mediated agreement is, however, fully enforceable in a court of law.

How Does Mediation Work?

In advance of any mediation meeting, it is common, but not necessary, for the parties to provide the mediator with information about the dispute.  This can be done with documents describing the facts and issues of the case.  Often, but not always, this information is also exchanged between the parties.

Depending on the relationships between the parties, all participants may meet initially with the mediator to discuss the case in general terms.  The parties may stay in the same room or go to separate rooms, depending on the case.  The mediator serves as liaison to develop consensus in either situation.

Is Mediation Confidential?

Mediation offers a confidential process.  While court hearings of cases happen in public, whatever happens in mediation remains strictly confidential!  No one but the parties to the dispute and the mediator(s) know what has gone on in the mediation forum.  In fact, confidentiality in mediation has such importance that in most cases the legal system cannot force a mediator to testify in court as to the content or progress of mediation.  Many mediators actually destroy their notes taken during mediation once that mediation has finished.  The only exceptions to such strict confidentiality usually involve child abuse or actual or threatened criminal acts.

The Benefits of Mediation

Mediation has many benefits.  One of them certainly is the confidentiality that goes with it.  Trials are public and for everyone to see, but in mediation parties can make as much or as little known to the outside world as they like.  Much mediation goes by without anyone outside of the parties involved every knowing about them.

Mediation is also a good way to bypass scheduling times on crowded court calendars; it avoids preferential treatment courts give to criminal cases.  It furthermore eliminates the expense of expert witnesses and costs that usually go with a jury case.

In Comparison, a typical trial, filled with stress and great expense, may not result in a verdict for 18 months from the date of filing.  Mediation, with the exception of family law cases, can usually be solved in less than a week, at times even sooner than that.

Mediation in Family Law Cases

Divorce, child custody and other family law matters involve some of the most complex and personal situations an individual encounters in a lifetime.  Clients have concerns ranging from dividing property and debt to custody of children and support obligations.

Many issues that need to be considered in family law cases include child custody, visitation, child support, spousal maintenance and marital property division.  These are all issues that can be resolved without going to court.  It is often in the parties’ best interest to choose for mediation because court dockets have become more congested and cases risk becoming a long drawn out battle.  For this reason there is a greater focus on Alternative Dispute Resolution (ADR) such as mediation in family law cases.

Mediation is not only a confidential, practical way to resolve problems with the help of an impartial third party.  It is a non-adversarial approach to conflict resolution, where the parties generally communicate directly; the role of the mediator is to facilitate communication between the parties, assist them in focusing on the real issues of the dispute, and generate options for settlement.  When parties mutually agree that they have found common ground on the issues, and agreement will be made and signed by all parties involved.  The agreements then are incorporated into the divorce decree or court order and are then subject to the approval of the court.

Why should I consider family law mediation?

Mediation, particularly in a family law setting, provides a viable option for those who prefer to stay out of court.  The biggest advantages of mediation are the enormous reduction in cost.  People usually find mediation less emotional stressful than a court proceeding.  The rules and procedures involved with mediation are much more flexible than it would be in any court.

What are advantages of mediation?

A very important benefit of mediation in family law cases is that parties have a control over what they agree upon, because the focus is not on the personal conflict between the parties, but the desire to find a way to cooperate and move forward.  For example, in a custody dispute (time with children, special or changing needs of children, child support, taxes, medical insurance, child care) mediation allows parents to seek practical solutions which are customized to fit their unique circumstance, unlike a standardized court order.  The process itself helps parents find ways to work with each other’s situations regarding their children so that they themselves will have less emotional stress because of the divorce.  A mediator will help parents look at the various options available for them instead of arguing about what they don’t want, and help them make a decision with confidence.  This is important because a successful custody schedule is more likely to occur when both parents are committed to a plan that they created and makes sense to them.

A key advantage to mediation is that the parties themselves, not a court or some other third party, are primarily responsible for the outcome.  The other main advantages of mediation have to do with time, money, form, and satisfaction.

1. Time. Mediation usually takes less time than litigation because it avoids court scheduling delays and because there are no formal court rules to interfere with the pace of negotiations.
2. Money. Because preparing a case for trial is expensive, mediation saves money by reducing the number of issues that must be prepared for trial.
3. Form. In mediation, the parties have wide discretion to control the form of the proceedings.  This control means the parties can set rules appropriate for their situation and avoid formalities that may hinder negotiations.
4. Satisfaction. Because mediation allows the parties to actively participate in negotiations and to control the outcome, divorce issues resolved through mediation are less likely than those resolved through litigation to result in future disputes.

What divorce issues can be resolved through mediation?

Divorcing couples are typically free to choose which issues to resolve through mediation and which issues to resolve in court.  Some states require mediation to resolve issues regarding children, such as child support, visitation, and child custody.  In other states, mediation of child-related issues is not mandatory but can be ordered by the court when necessary.  However, all child-related issues resolved through mediation will require court approval to be enforceable.

Other divorce issues commonly resolved through mediation include spousal support (alimony), marital-property division (marital homes, family-owned businesses, and other jointly owned property), division of retirement benefits (pensions, 401(k)s, and other retirement plans), and health-care benefits.

What happens when an agreement is reached?

When the parties reach an agreement through mediation, the agreement must be put in writing.  The written agreement is called a divorce settlement agreement or a marital settlement agreement.  Each party should have his or her own attorney review the agreement before he or she signs it.  The parties should have an attorney draft the final version of their agreement and file other required documents with the court.  An attorney, unlike a non-attorney mediator or the parties themselves, is typically in a better position to see that the agreement meets the court’s formal, procedural and legal requirements.  An agreement that does not meet legal or procedural requirements will not be accepted by the court.

You will want to speak with a mediator who will provide you with practical solutions which are customized to fit your personal circumstances.

We at GP Schoemakers PLLC can help you.  We believe that the first step in obtaining results is to always keep the lines of communications with our Clients open.  Ms. Schoemakers’ Clients know that they will always speak with her and be fully informed of all developments in a timely manner.

If you choose Gratia Schoemakers as your mediator, you will have the advantage of both a trained and skilled mediator as well as a reputable lawyer who’s knowledgeable and licensed in Texas law.  So whatever path your mediation takes, you will have a skilled practitioner and an experienced problem solver assisting you during these difficult times.

To determine whether mediation is appropriate in your situation, contact GP Schoemakers PLLC to discuss your options.

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