Family Law AdvisorŪ

1. What is mediation?

Mediation is a private process in which an impartial person, a mediator encourages and facilitates communications between parties to a conflict and strives to promote reconciliation, settlement, or understanding. A mediator's obligation is to assist the parties in reaching a voluntary settlement. A mediator does not act as a judge, an arbitrator, a counselor or an advisor to the parties. A mediator does not render a decision on the issues in dispute. The primary responsibility for the resolution of a dispute rests with the parties.

An attempt at mediation is required in many counties (including Travis and Williamson) before parties to a family law dispute may have a hearing before a judge that will take 3 hours or more.

2. How long will mediation take?

Mediations can be as long or as short as the parties determine is necessary to negotiate a full and fair agreement regarding their dispute. Generally, mediations will be set for half-day or full-day sessions. Your attorney will advise you about which session would more appropriate for your case, considering the complexity of the issues involved. If, after your session is complete, you and the opposing party wish to continue discussions further, you can re-schedule for another half-day or full-day session to continue working toward settlement.

3. What is the value of mediation?

* The most significant value to mediation is that it gives the parties complete control over the outcome of their dispute. The parties can fashion a creative settlement that fits their unique goals, lifestyles, values and needs. The parties can be, and are encouraged to be, as creative as possible in fashioning an order that they will have to live with indefinitely. In contrast to litigation, where a judge imposes an order on the parties after getting to know them for all of a few hours, in mediation the parties create an order that considers all the factors that are specifically important to these parties.

• The process is private. Rather than airing their dirty laundry in a public courtroom where a record of all proceedings is made, the parties can feel free to discuss, negotiate, propose creative options for settlement, and vent frustrations in a private and confidential atmosphere.
• The process is confidential. State law requires that, except in very limited circumstances, the mediation process and all communications made during the mediation process are confidential. Settlement options offered during mediation can never be repeated in court later, if mediation should fail. A mediator cannot be called to testify about what occurred during mediation and the mediator will generally destroy all notes made during the mediation process, except for any final agreement made by the parties.
• The parties are not constrained by time. Parties can take as long as they need to work out their dispute. This is very different from litigation where the parties will be limited in the time allotted to them by a very congested court docket.
• The parties are a lot more likely to comply with an order that they created themselves, rather than one that is imposed upon them.
4. What are our chances for success in mediation?

As many as 80% of mediating parties reach comprehensive resolution, with at least half of the remaining 20% reaching at least some significant substantive resolution (for example, parenting arrangements or financial resolution, but not both).

5. What happens if we reach an agreement?

If the parties reach an agreement, the agreement will be reduced to writing by the mediator as a "Rule 11 Agreement". That means that once it is signed by the parties, it is a binding and irrevocable agreement that gets filed with the court. Neither party can change their mind later. The attorneys will work from the Rule 11 Agreement in composing the more formal final documentation that will be presented to the court for signature.

Even if the parties only reach a partial agreement, the same procedures are followed and only the remaining issues will continue forward toward litigation.

- - Daryl G. Weinman, Attorney at Law