How Does Divorce Mediation Work?

Apr 15, 2022 | Divorce, Mediation

Divorces can be challenging, and courts can get daunting – if you’re looking to settle your divorce amicably and simultaneously out of court, you might want to seek divorce mediation or hire a divorce attorney

What Is Divorce Mediation?

Mediation is an out-of-the-court dispute settlement process in which a neutral third person, named the ‘mediator,’ helps both of the parties to reach a mutually agreed-upon conclusion to their disputes. 

In divorce mediation, the mediator helps two spouses settle matters concerning their marriage, such as child custody and support, dividing of shared assets and liabilities, alimony or other support, divorce terms, tax issues, and more. 

Often, these matters are decided in court – that is, in trial and in front of a judge with witnesses and evidence. But there are a few perks to taking the mediation route:

  • It’s faster and more cost-effective than going to trial.
  • Mediation enables you and your spouse to determine the final outcome of your divorce; in court, however, the State of Texas will determine the outcome, such as where your child will live and which assets you’ll keep after the divorce, among many other critical issues.
  • You and your attorney will negotiate with your spouse using the help of the mediator, who is an entirely neutral third party specifically trained in family law conflict resolution. 
  • Mediation proceedings are kept private – as opposed to the usual public courtroom proceedings. 

There are different types of mediation as well. Sometimes, parties will go to mediation only for what is known as “temporary orders”, which are the financial and tax-related rules that the parties will follow during the divorce process and until the divorce is final. However, spouses will often mediate for “final orders”, meaning a complete and final resolution of all issues necessary to finalize the divorce case.

In this way, divorce mediation can be used to solve problems that come up during the divorce process (“temporary orders”), or they can be used to fully resolve your divorce case (“final orders”).

When Can You Start Divorce Mediation?

Divorce mediation can take place at any time after someone has filed for divorce, meaning that one of the spouses has filed an Original Petition for Divorce with the proper court. 

Mediating your case early in the divorce process has certain advantages, such as reducing legal fees and costs by jumping to the finish line and reducing the number of steps in your divorce case. Mediating later in the divorce process also has its advantages. For example, it is often necessary for each spouse to disclose certain financial and other information to the other spouse before that spouse can make informed decisions in the mediation context. An experienced divorce attorney can help to decide when and if divorce mediation is right for your situation.

Ideally, you most likely want an uncontested divorce – where both the parties have mutually agreed upon the terms of their separation, the division of their assets and liabilities, and custody of their children (and pets!), if any, leaving nothing (or very little) left to fight about. Divorce mediation is a great way to finalize the terms of an uncontested divorce for many divorcing couples. 

How Does Divorce Mediation Work?

Most divorce mediations work using the following template: 

  • Introduction
  • Identification of Issues
  • Negotiations
  • Mediated Settlement Agreement  

These steps are completed in a single day in most successful divorce mediations.

The mediator will explain the mediation rules and procedures during the introduction stage. For example, you (probably) will not see your spouse during divorce mediation. Whether the mediation is held in person or via video conference, you will be in a room (or virtual room) with your lawyer, and your spouse will be in a separate room with their lawyer. The mediator will go back and forth between the two rooms throughout the day.

After the introductory phase, the mediator will spend time with each of the parties and their lawyers to identify the issues that must be resolved during mediation in order to finalize the divorce process. This means narrowing down the exact matters in dispute – assets, debts, custody, support, etc. After the issues have been framed, the parties negotiate a resolution of each of those issues. Sometimes this part of the mediation process is more of a collaborative brainstorming process, and other times it involves more calculated and strategic negotiations. 

When all of these steps are completed, the mutual agreements of both parties are incorporated into a written agreement – called a “Mediated Settlement Agreement” or “MSA” – which all of the lawyers and parties will sign.

Under Texas law, the Mediated Settlement Agreement is (probably) not legally binding unless the Mediated Settlement Agreement: 

  • is signed by both spouses; 
  • contains a prominent (bold, capitalized, or underlined) statement that the agreement is not subject to revocation; and
  • is filed with the Court in your case.

Once these steps are completed, the terms of the Mediated Settlement Agreement are final and cannot be changed, except in very limited circumstances, such as where the Mediated Settlement Agreement would endanger a child. 

Do You Need A Lawyer For Your Divorce Mediations?

While the mediation process doesn’t require a lawyer, it’s typically a good idea to have an expert by your side, particularly when the most important parts of your life, such as your children and your life’s savings, are on the line. An experienced divorce attorney can help with divorce mediation in the following ways:

  • Ensure that you know the rules and procedures of the mediation process and your legal rights.
  • Familiarize you with the Texas laws that are relevant to your situation, such as marital property laws and the laws applicable to child custody and support or alimony
  • Utilize knowledge of the law and legal procedure to help you achieve a better outcome in mediation or in court.
  • Review your proposed settlement agreement to ensure accurate, error-free, and legally enforceable material.
  • Draft the documents necessary to finalize your case, such as the “Agreed Final Decree of Divorce” – the document a judge signs to finalize your divorce – as well as any other documents necessary to carry out the terms of the Mediated Settlement Agreement, such as real estate documents, tax documents, and documents transferring retirement funds between spouses in tax-free transactions.

Divorce by trial can be very expensive due to the number of hours of attorney and paralegal work required to go through all of the legally-mandated steps of a divorce case resolved by trial. It is a financially taxing and time-consuming process. 

If you believe that you and your spouse are on amicable enough grounds to reach agreements through the mediation process, hiring a divorce attorney trained in mediation and conflict resolution will benefit your team. If you would like more information about how our firm can help you, contact us today to get started! 

What Happens If Mediation Fails?

Divorce mediation is great if it works, but it does not guarantee that mediation will work in your case. In our experience, however, most but not all parties who mediate their divorce case sign a Mediated Settlement Agreement at the end of the mediation process.

Mediation only works when both spouses are willing to make reasonable agreements and compromises. Your spouse may have unrealistic expectations or a very different view of what “fair” means. It’s also possible that a marriage may have broken down to the point where reasonable negotiations are unlikely. It’s sometimes better to walk away from a bad deal than to accept it even if the alternative – trial – is very unappealing. 

No one must agree to anything or do anything in mediation other than participating in good faith. In the case of unsuccessful divorce mediations, the cases will proceed to trial and be heard and examined before a judge.

Even failed mediations have their advantages, however. Valuable information is often learned during the mediation process. Mediation is also required in many Texas courts before you can schedule your case for the final trial, and a failed mediation checks that box.

Contact our office today if you are interested in our mediation services or would like to learn more! Our experienced team will guide you through the entire mediation process. We have helped countless couples through the divorce mediation process; call us today to get started!

Amicable when possible, aggressive if necessary.

Everyone’s situation is unique. Some people need a facilitator, some people need a negotiator, and some people need a tough trial lawyer to go to court. I let my clients know the different paths available to them based upon their situation, and work with them to design a unique strategy and tactics to meet their goals and objectives.

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