Mediation is defined by Texas statute as a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them. This means that a mediator attempts to provide a safe place and a fair process for the parties to communicate and make decisions. A mediator does not impose his own judgment on the issues but merely assists the parties to reach a resolution. Mediators do not take sides or give advice.
It is the policy of the state of Texas "to encourage the peaceable resolution of disputes . . . and the early settlement of pending litigation through voluntary settlement procedures." For many years, courts have had the authority to refer a case to mediation. The courts in many Texas counties, including Travis, Hays and Williamson counties, require that parties to a divorce suit attempt mediation prior to trial of the case.
At mediation, the parties will be asked by the mediator to explain their goals of mediation. The mediator will be trying to determine where the parties agree and disagree. If a party is not represented by an attorney, that party ought to meet with an attorney in advance of mediation to better understand all available legal options. When parties are represented by attorneys, the attorneys usually have sent a letter to the mediator outlining the existing issues in the case.
Gathering information ....
Prior to mediation, the parties and their attorneys have spent time gathering, organizing, and analyzing information. They have considered where to begin at mediation and how far they are willing to go to settle their case.
If a party is not represented by an attorney at mediation, this firm recommends gathering information prior to attending mediation. An important element of mediation is the idea that everyone has the same information or at least complete information so that both parties believe they can make intelligent decisions.
Settlements ....
If all issues are resolved, the mediator, with the assistance of the parties and attorneys will draft a Mediated Settlement Agreement which is an outline of the parties’ agreement.
If the parties have attended mediation without attorneys, often the mediator will recommend that each party take the Agreement to an attorney and allow an attorney to review it to make sure it completely and accurately sets out that party’s understanding of the agreement. If the parties attended mediation with attorneys, then the parties and attorneys often will review the written Mediated Settlement Agreement at the mediation.
If the Mediated Settlement Agreement accurately reflects the parties’ agreement, they will sign the Mediated Settlement Agreement.
No rule exists stating that a party must be represented by an attorney at mediation. In some instances spouses or individuals with family law disputes attend mediation without representation. At a minimum, however, this firm recommends a consultation with an attorney prior to mediation so that an individual understands the legal issues and legal options that may exist in a case.
In some instances, parties who have retained attorneys will attend mediation themselves without their attorneys present. In these instances, the attorneys are available by telephone in the event the mediating parties have need of attorney advice during the mediation.
In this firm’s experience, most often parties attend mediation with their attorneys.
Length of a mediation ....
Mediation can last half-day, a full-day, or span several days depending on the complexity of the issues in the case and the personalities of the involved parties, and possibly attorneys.
Negotiating and the mediator ....
At some mediations, all parties remain in the same room with the mediator facilitating communication. During this time, the mediator learns a lot about the issues and each individual’s positions on the issues. At some mediations, the parties are not in the same room. Each individual (and that individual’s lawyer) are in separate rooms and there is no direct communication. In this instance, the mediator “shuttles” back and forth between rooms communicating offers and counter-offers. Many mediations are a combination of both direct communication and “shuttle” communication.
Mediated Settlement Agreements ....
If mediation is successful, the parties and attorneys will review and sign a Mediated Settlement Agreement which sets out the agreement reached. This Mediated Settlement Agreement is then filed with the Court. If mediation is unsuccessful, often the issues have been narrowed which still is beneficial to the parties.
Finalizing the divorce ....
If the parties reach a Mediated Settlement Agreement, a Divorce Decree and other closing documents are prepared, exchanged, approved and signed. One party and his/her lawyer appear in front of a judge, obtain the divorce, and obtain the judge’s signature on the Divorce Decree.
The better question is who is not right for mediation. Mediation can play a role in almost every type of lawsuit. Most lawsuits do not settle due to a lack of information or poor communication. The mediation process provides a safe environment with a neutral person to serve as a communication facilitator. In many instances, mediation enables parties to settle their entire case or to narrow the issues in their case.
In some instances, people who suffer from serious psychiatric problems, or who are victims of active domestic violence will not be able to participate in mediation. Sometimes mediation can be structured in a way to accommodate these difficulties. A client should discuss concerns like these that may exist with his/her attorney or the mediator.
What are the Key Benefits of Proceeding in Mediation?
Process ....
The mediation process seeks to create a safe environment and a fair process for the parties to communicate and make decisions, and hopefully to resolve their dispute.
Risk ....
The mediator cannot impose a decision; any issue that is resolved is accomplished with the voluntary agreement of both parties.
Privacy ....
The mediation process maintains the parties’ privacy by not airing differences at the courthouse which is a public forum.
Thomas L. Ausley, Kris Algert, and Kelly Ausley-Flores are trained in the mediation process and are available to mediate family law disputes; however, they will not serve as mediators unless both parties are represented by attorneys. All of the lawyers at Ausley, Algert, Robertson & Flores, LLP have represented parties in mediation.
Thomas L. Ausley Named in "The Best Lawyers in America, Family Law Section" since 1987; board certified Family Law (1980) and Civil Trial Law (1982) by Texas Board of Legal Specialization.
Kristen A. Algert Helping couples maximize their options and maintain their dignity during divorce; board certified Family Law (1997) by Texas Board of Legal Specialization.
Eric Robertson Named in "The Best Lawyers in America Family Law Section"; board certified Family Law (1997) by Texas Board of Legal Specialization.
Kelly Ausley-Flores Assisting her clients through the difficult process of divorce by putting the clients’ needs first; board certified Family Law (2000) by Texas Board of Legal Specialization.
JoAl Cannon Sheridan Combining legal experience with a sensitivity to often emotionally difficult family law matters is essential to providing the best representation for her clients.
Kelly Caperton Member of the State Bar of Texas (2006), the American Bar Association, the Family Law Section of the State Bar of Texas, the Austin Bar Association (Family Law Section), and the Collaborative Law Institute of Texas.
