Monday, July 15, 2013

When will I go to mediation if I have a family law matter pending in Harris County?

In a family law matter in Harris County, some courts will send you to mediation BEFORE you can even have a temporary order hearing.

So, you might actually attend at least two (2) mediations before your case is settled in some Harris County District Courts.

However, some courts will send you to mediation only before final trial.

If the attorneys can convince that mediation would not be appropriate for a variety of reasons, such as domestic violence has occurred repeatedly during the marriage or there is a current protective order in place, then the attorneys might ask the judge to waive mediation before going to trial.

Occasionally, if the attorneys forgot to schedule mediation and the judge's schedule is open, some judges will allow you to skip mediation and proceed to trial...but don't count on it. Generally, in Harris County, you will attend mediation before you go to trial.  And, sometimes, you will go to mediation a second time before you go to trial.

How much does mediation cost?  I'm one of the cheapest mediators in Harris County - $300/per side for 4 hours (this rate applies through 12/2015 - after that it might change).  (Some of the former judges who now mediate charge $2,500/per side for a full day. If a judge orders you to a specific mediator, you pay whatever that mediator don't get to complain about what the mediator charges!

Some judges might order you to attend mediation more than once before getting a final trial date.

If you refuse to attend mediation, your pleadings can be "struck" by the judge.
What does that mean? You basically can't "do" anything at trial.  You have totally "killed" your case.  Therefore, if ordered to mediation, I highly recommend that you show up and that you participate in good faith in the mediation process.

I've only had one man in 9 years of mediating who was ordered to mediate & showed up & walked out after 5 minutes. He refused to pay me or to sign the Agreement to Mediate.  I reported this in my "Report to the Judge". The judge ordered him to pay my fee at trial.  The judge was not very happy with his behavior.  Showing up & walking out in 5 minutes & refusing to sign the Motion to Mediate & refusing to pay does not count as "mediating in good faith"!  Plus, his wife received everything she wanted at trial.

I prefer to mediate a case close to the trial date.  Why?  For a variety of reasons:

1.  Hopefully discovery has been completed, if it has been done.  The parties have the information available to make settlement a possibility.  They have the knowledge they need to make an informed decision about property division.  All debts and assets have been disclosed by both parties.  On the other hand, any "unknown" debts or assets are now clearly defined too.

2.  If an amicus attorney was requested by the court, the amicus has done their job and this attorney will attend mediation to assist the mediator.  If an amicus was appointed, I insist that the amicus appear at the mediation.  I consider this person a necessary party and I will not conduct the mediation without the amicus attorney present.

3.  The attorneys are ready to proceed to trial and know their client and their case. They can now assist their client in making an informed decision about settling their case.  They can "guide" their client in making a good settlement in their case.

4.  The parties are ready to settle.  They are now emotionally ready to settle the case and move on with their lives.

5.  I consider the case "ripe" for settlement.  Often if parties come to mediation at the beginning of a case, they are not emotionally prepared to settle their case, they do not understand what is happening in the case and they do not understand the legal system.  At the beginning of a case, the case is not "ready to settle" and mediation is often not successful.

The timing of a mediation is often critical for success.

6.  The parties have paid a lot of money to their attorneys.  The parties understand that going to trial is going to cost them a lot more money.  The understand that settling their legal case is going to save them a substantial sum of money.  They are now motivated to settle.

7.  The parties understand that going to trial is going to be emotionally painful.  The parties recognize that their "dirty laundry" might be aired in open court.  The courtroom is a public arena.

The parties understand that mediation is private and confidential.  The parties realize that they control the mediation process. They understand that the agreements that they reach can be more liberal and/or flexible than the judge could order under the Texas Family Code.

The parties recognize that the parenting of their children can address issues that could not be addressed by the Judge under the Texas Family Code.  This is especially important for parents with children with special needs and/or gifted children.

Most mediations are one time events in the Harris County court system.  

However, sometimes I've been known to take a "recess" and do a second mediation.  Why? Because the parties needed to think about the settlement offers on the table and/or emotions were running too high and the parties needed to take break and think about the matters we discussed.  In all the cases where I have done this, when I asked the parties to take a recess, we came back 2 weeks later and we were able to settle the case quickly and easily.  In all cases, the parties thanked me for suggesting that we take a recess to allow them to "ponder" my suggestions.  The parties said that taking a break and thinking things over turned out to be an excellent idea.  They could meet with their attorney, look over everything, and sleep on it.  They realized that my suggestions had been excellent and that they had just needed some like to "absorb" the final settlement offer.  In the end, the settlement offer that I had proposed had been best for everyone, it had just been a lot different that either of them had thought of before and they needed time to "adjust" to it.  Therefore, if the attorneys and parties are open to my idea, I will often suggest a "break" and if I think that the parties are "overwhelmed" and "hit the wall".

I hope this explains a little bit about Harris County mediations.

No comments:

Post a Comment