Friday, May 16, 2014

Mediation Thoughts

Note: I might use the term "divorce mediation" but it applies to all form of mediation!
Mediation uses a mediator which a trained neutral third party. In other words, mediation is a process in which parties to a dispute (say, a divorcing couple) communicate about their conflict with the help of a trained neutral, called a mediator, with the goal of reaching a settlement. This agreement is something that the parties reach by themselves voluntarily.  The mediator does NOT force them to come to an agreement.  Some divorcing couples may be able to work out all issues dividing them without help. Sometimes the agreement maybe a partial agreement & then the parties go before the judge for only a limited number of issues - in order to save time and money.  However, it is usually the case that people going through a divorce (or other family conflict) will need some assistance to reach an agreement that most effectively meets their needs and the needs of any children who may be involved.
Effective family mediation requires a discrete & unique set of skills and attitudes that is quite different from the set of skills and attitudes characteristic of an effective litigation-oriented lawyer. Attorneys making the transition to mediation frequently must un-learn behaviors that made them successful as litigators. In short, some attorneys are wonderful mediators; others are not. Whether a mediator is an attorney is just one factor to consider among others, such as the mediator’s reputation, mediating style, fee structure, availability, and overall compatibility with the clients. Mediators must be flexible & carefully listen to the needs and wants to the parties.  The parties control the mediation.  
Some mediators offer an informational interview, either in person or by phone, during which potential clients may meet the mediator and ask questions about the process. The purpose is for potential clients to gather information about mediation process and to assess whether the particular mediator consulted is a good fit for them, before signing an agreement to mediate.  The mediator must be careful in order to remain a neutral during the entire process.  However, both parties must feel that the mediator is "listening" to them.  
The primary benefit of mediating a divorce is that the parties control the terms of their agreement. In essence, they create their own customized agreement, tailored to their unique situation. While there are certain statutory items that must be considered, agreements made in mediation can cover a wider spectrum of issues, with more creative, individualized results, than would be possible if a judge were to control the process. In addition, mediation is confidential. Everything said during mediation, any draft resolutions or unsigned mediated agreements are considered settlement negotiations, and therefore will NOT be admissible in court. There are some very narrow exceptions to confidentiality that are beyond the scope of this article.  
In Texas, the judges must follow the Texas Family Code.  The mediation process allows for more flexibility.  In the courtroom the judge must follow the TX Rules of Evidence.  The mediation process allows for more flexibility.  The parties just talk.  People are allow to share their feelings, concerns and worries.  A judge can only allow testimony about concrete evidence in the courtroom - a party's worries about potential future events is not allowed into evidence at a trial before a judge since it is only an potential event in the future.  
Research indicates that when the parties are involved in crafting their own agreements, the long-term compliance rates are much higher than when a court imposes terms on a couple. This is a big plus when there are children involved. Also, once parties have come to agreement in mediation, if circumstances change, they are more likely to return to mediation to modify their agreement rather than resort to litigation about the changed circumstances.  Parties feel empowered because they were able to make decisions about their future and their children's future.  They also understand the agreements they made - rather than the orders that the Judge orders from his bench that most people don't understand.  
The Process
Couples can enter divorce mediation at any point during the litigation process.  Some couples complete mediation of their entire agreement before they file the petition. Others file the petition, mediate their settlement agreement, and then complete the rest of the statutory process. Some couples start out litigating with attorneys, and then enter mediation with or without their attorneys present. There is no one right way.  Many paths may lead to agreement.  Every mediation is unique because the parties are different and the parties control the process.  
I personally prefer that a petition be on file at the courthouse before the couple come to me for mediation. That way if we reach an agreement, our signed agreement can be filed at the courthouse and it is binding on the parties and the judge.  I also prefer that the parties have attorneys representing both parties.  Even though I am an attorney, if I act as a mediator, I am not supposed to give legal advice.  In family law cases, TX family law is complex.  Most parties do NOT understand Texas family law.  TX family law has changed a lot in the past 10 years and an attorney is need to explain all of the options available regarding child visitation - which has many variables available in the mediation process.  Often when I begin to explain some of the options available, pro se litigants eyes begin to "glass over" and I lose them.  It is much quicker and easier for me, as a mediator, if the parties have attorneys so that the mediation process can move quicker.  
If the parties have the monetary resources, then outside experts might even be brought in for their input, such as for pension evaluations or business valuations, appraisals of the family home, or various kinds of economic analyses. There may even be times when outside experts are desirable for evaluating what is best for the children.  
The scope of the mediation is up to the parties. In a typical comprehensive divorce mediation, all of the statutory requirements are addressed: identification and division of property and debts, parenting plans, and child and/or spousal support. In addition, the parties may choose to mediate topics that a court would not necessarily consider on its own, such as visitation by children with extended family, consequence of one parent moving far away, unique arrangements for payment of the spousal support obligation, and many more. The divorce mediator aims to find ways for each party to meet his or her needs. In popular terms, mediators strive to facilitate the clients in thinking outside of the box, so the clients can develop solutions appropriate to their unique situation and to accommodate their new family arrangement.  As I often tell parents, you are divorcing, but you will be co-parenting your children for the rest of your lives.
In the State of Texas, most courts require mediation before a trial can be held.  What most attorneys do NOT tell a client when they first walk into their office - 95% of cases settle before trial.  Why not? Because when a person first walks into an attorney's office that person wants a fight.  They are mad and angry.  The attorney knows it.  So the attorney initially prepares for a fight and going to trial.  Gradually, if the client is sane, the anger will diminish and the person will recognize that settlement is healthier & also less expensive.  After the client receives a few hefty monthly legal bills and their pocketbook is much lighter the client will begin to recognize that litigation is NOT the way to go - the client will beg the attorney for an alternative.  A smart attorney will then mention mediation and the advantages of mediation.  As a mediator, this is when I like to see parties come to mediation...when the parties have fought for awhile, they are tired & they want this case to be settled.  They are now pliable and ready to settle.  They have been separated for several months, been co-parenting in two households, the children have adjusted and things have settled down.  Now they are ripe for mediation.  
The actual process of mediation is highly variable, depending on the issues brought by the parties and the style of the mediator. I have done one session that lasted 12 hours and I have done multiple sessions.  Most people want to do one session.  Sometimes multiple sessions are needed.  Why?  If the parties do not have the information necessary to reach an agreement and more homework is needed to be done or one of the parties needs time to ponder the offer.  I have found that all of the multiple sessions have been very productive.  
The end product of divorce mediation is an agreement, in writing, that addresses all of the issues required or desired to be settled by the parties. It may take the form of a  which sets out all of the terms of the agreement, or a Mediated Settlement Agreement (MSA), which is filed with their judgment of divorce.
The Paperwork
Typically, the mediator is responsible for preparing a written document that sets out the terms of the mediated agreement, Mediated Settlement Agreement (MSA). The actual petition for dissolution of marriage and subsequent legal paperwork is a separate task. Although some couples try to handle the divorce paperwork themselves, it can be a daunting project. Filing the petition for dissolution is fairly straight-forward, but filing and serving all of the papers required to complete the process and obtain a valid judgment is more complicated and can be stressful. Obtaining competent assistance is essential in most cases. Frequently, court clerks return self-prepared documents for corrections, sometimes more than once.
One party may retain an attorney to file the case as an uncontested default, either after a mediated agreement has been reached, or in anticipation that an agreement will be reached. Some clients opt for a legal document assistant to help them with the paperwork. The quality of service provided by legal document assistants can vary widely, so careful selection of an assistant is essential.
Even though I am an attorney, if I act as a mediator, I cannot do your paperwork in the State of Texas.  You must have another attorney do your paperwork.  I can refer you to someone or you can find someone to do it for you.  There are many attorneys that will do this for you.
I do NOT recommend the internet kits since most are sold by out-of-state companies that do not comfort with
TX laws.  Also, they do not contain the REQUIRED TX and local forms that you will need.  Plus, in Texas one of you must stand in front of the Judge and under oath ask for the divorce to be granted in order for the Judge to actually sign the Divorce Decree.  Why? Because it is the law in the Sate of Texas.  You have to do it or the divorce paperwork will not be signed by the Judge - the case will be dismissed and all the work you have done and the money you spend will have been wasted!
Costs of Mediation?
Typically, when one household is splitting into two, money is tight. Fees for mediators can vary widely, ranging from $150/hour up to $700/hour or more divorce mediators. Other costs include the court filing fees for the petition - Harris County charges approximately $300. There will be fees for experts for necessary services such as pension evaluations, appraisals, and fees for consulting attorney.  Preparation of special orders known as qualified domestic relations orders (QDROs) for division of certain kinds of pensions cost approximately $500. 
My rates are purposely low even though I am one of the few Credential Advanced Mediators in the Houston area by the Texas Mediator Credentialing Association.  Why? Because kept my over-head low and I have kept my fees low because the Harris County judges like it!  I get referrals from the judges because of my low rates.  Also, the local family law attorneys like my rates.  My rates are under $300 per side for 4 hours.
There is no exact way to predict how long  a mediation might be. The bottom line is that the higher the level of conflict in the relationship, the more it will cost because more sessions will likely be necessary to come to agreement. Equally, if the couple’s financial situation is complex, more sessions may be required, and more expert opinions may be necessary. If there are minor children, probably at least a couple of sessions would be devoted to developing a parenting plan and appropriate child support.
People want a mediation to fly!  It does not go that way.  People need to get their feeling out.  That takes awhile.  Usually one party is much further along in the emotional process that the one party.  The mediator must let the process unfurl as necessary.  The mediation process is a process.  It cannot be hurried.  The mediator is the person in charge of this process - not the parties.  Often the parties are put into two separate rooms in order to allow them to share their feelings openly and honestly with the mediator.  Even if no resolution is reached at the end of the mediation process, most participants feel that they have been heard and that they were treated with dignity and respect.  Mediation can be a magical process where healing can begin to happen.  It is not therapy and it cannot fix the past.  It can encourage people to look forward and not backward.  
In order for mediation to be successful, the parties must negotiate honesty and with integrity.  All assets and debts must be revealed.  Normally a paragraph is included in the Mediated Settlement Agreement that is anything is "hidden" that it dealt with in the future or it goes to the "innocent" spouse.  That encourages the parties to be honest in their dealings.  Both parties must negotiate in good faith.  Mediation is also not appropriate if one party intends to intimidate or "force" the other to settle.  I have only stopped one mediation in my career when one party wanted me to "force" his spouse to sign the Mediated Settlement Agreement - he then threatened to hurt me & I had to have him removed.  I then had to have his wife taken to a shelter for abused women.  
Not Therapy
Mediation is not therapy.  I am not a therapist.  I encourage people to go to a counselor or therapist. But mediation is not designed to be therapy.  I cannot solve problems in a 4-hour session.  
Mediation provides many benefits over litigation or court-ordered settlements. Mediation is client-centered. The parties control their agreement, which they may shape to accommodate their unique set of circumstances. Mediation is forward-looking, and can plan for the future of the changing relationship between parents and their children. Because long-term compliance rates for mediated agreements are higher than for litigated cases, mediation provides more stability for the children. As circumstances change, the couple is more likely to return to mediation to modify their agreement rather than resort to litigation about the changed circumstances. Finally, mediation tends to be much less expensive and less stressful than the litigated divorce. Mediation reduces the physical and emotional costs of litigation, as well as the financial costs.

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