Monday, June 30, 2014

Introduction to Divorce Mediation

Intro to Divorce Mediation

Mediation is an option for couples who want to avoid the adversarial divorce process.

For some people, the words "divorce" or "family law" or "child custody" conjures up a stressful and expensive courtroom battle - a scenario where spouses/former partners battle it out in court and attempt to destroy each other's character and credibility.  The movie "War of the Roses" comes to mind.

But it does not have to be that way.  Alternative Dispute Resolution has a process called MEDIATION that offers an alternative to litigation.  In Texas, if an attorney serves as a mediator then that person cannot prepare the legal paperwork.  The mediator would refer you to a family law attorney to draft the paperwork for the Judge to sign to make all of your agreements enforceable in the future if one of you violates the agreements you reach at mediation. Mediation an preserve your finances, self-respect and sanity.  

What is Divorce Mediation?

Divorce mediation is a process in which you and your spouse work with a trained, neutral 3rd party divorce mediator to reach a settlement. 

There is no time limit to the mediation, which is good news for spouses who need more than one session in order to clarify their goals, views and expectations. 

There is also no limit as to what issues can be mediated (such as spousal and child support, assets, visitation, and so on).  Mediation allows more flexibility than litigation - since the judge must follow the Texas Family Code and at mediation we can be more flexible.  

Divorce mediation can be an approach that some couples have relied upon to make their divorce journey relatively smooth and even — believe it or not — peaceful and productive.  It's the beginning of your new and different relationship if you have children.  

The Benefits of Divorce Mediation

Some of the broad benefits of divorce mediation have already been mentioned — including the most important of them all: it's not court and it is confidential.  Additionally, the parties control the process.

There are many other key benefits that are worth highlighting; especially in light of what's at stake during divorce, and how quickly things can unravel and become contested and nasty. These key benefits include:
  • Divorce mediation can save you money. If your divorce winds its way through court, you can count on huge legal bills, plus other experts that you'll need to bring onto your team (financial experts, child care experts, etc.). Divorce mediation isn't free, and you still may need to bring in expert legal and financial expertise, but it is normally less expensive than litigation.
  • Divorce mediation can save you time. Unless your divorce situation is incredibly simple (i.e. you have no children, few shared assets, and both you and your spouse are eager to put the marriage in the rear-view mirror ASAP), then be prepared for a relatively lengthy process. But with mediation, you and your spouse can reduce the time involved if you prioritize your goals, put your emotions aside, follow the guidance of the mediator and negotiate in good faith.
  • Divorce mediation is fair. Mediation does not guarantee an ideal, happy win-win outcome. That's unrealistic. However, a trained and impartial mediator can even out the level of the playing field by ensuring neither spouse will overpower the other with emotional or financial control. A skilled mediator will diffuse emotions and show you how to focus on your common goals and resolve your differences. This way, neither of you feel railroaded into accepting an offer. On some issues, you'll bend a little. On other issues, your spouse will do the bending.
  • Divorce mediation is private. This is a benefit that many spouses don't pay much attention to (or don't know about) until they wind up in court and are forced to state — on the public record — personal and financial information that they likely wouldn't even dream of telling their closest friend. Information about affairs, about substance abuse, alcohol, physical and emotional abuse, about addictions, about their financial settlement… and so on. With divorce mediation, while these aspects may indeed come up, the information is kept private and your personal information is destroyed when the process is finished.  The mediator can never been subpoened or testify in a court proceeding.
  • Divorce mediation can broker better long-term solutions. When you and your spouse co-create solutions on everything from alimony to visitation to who gets the family dog (or cat), there's a greater chance that you'll both be satisfied with those solutions in the long-term future. Compare this to having a decision imposed on you by a judge — which can be shocking and hard for you to accept.  The judge will make decisions but usually neither one of you is happy with the court's decisions.
  • Divorce mediation can preserve your relationships with your spouse and your children. During mediation, you and your spouse will learn how to communicate and negotiate without being adversarial. This is invaluable training that will be useful even after the divorce, especially if you have children. Studies have shown that, contrary to popular belief, divorce itself doesn't necessarily have a negative or even a traumatic impact on children. Rather, it's how parents behave during and after divorce that deeply influences children. Mediation helps you and your spouse put your personal agenda aside and co-create a parenting plan that's best for you and your children. Indeed, as my father used to say - once you have children you are never truly divorced.  
How do I Know if Divorce Mediation is for Me?

Divorce mediation is not for everyone, or every divorce situation. And while there's no hard-and-fast set of rules or consistent "checklist" to tell you if divorce mediation is a viable option for you, here are some situations when divorce mediation will work best:
  • When you and your spouse can communicate reasonably (or are at least willing to try). Keep in mind that, by no means do you and your spouse need to get along in order to attempt divorce mediation. You just need to be willing to communicate and, to some extent, exit your comfort zones and work together towards a shared goal: the fair dissolution of your marriage.
  • When there is a basic level of trust between you and your spouse. At any time, during mediation, you or your spouse can get up from the table and march into court. Obviously you want this to happen only as a last resort, and not at the first sign of stress, tension or trouble. Remember, divorce mediation isn't as brutal as court (which is adversarial by its very nature), but it's no picnic either. Be prepared for some ups and downs, and be willing to really give it an honest try before giving up.
  • When you're honestly prepared to end the marriage. This may seem like a very strange point, but there are many couples who, fundamentally, don't want to get divorced. And so they end up viewing the divorce mediator as a marriage counselor. This is an extreme mistake. Divorce mediators are not trained to patch up a marriage. They are focused on helping both parties co-create fair, reasonable and acceptable resolutions as part of the dissolution of the marriage.
For more information on mediation check out --

To find an experienced family law mediator check out -
Association of Attorney Mediators
Texas Mediator Credentialing Association (TMCA)
Texas Association of Mediators (TAM)
Association for Conflict Resolution - Houston
Association for Conflict Resolution - National website - to find an attorney and/or mediator in your area

Fran Brochstein is an Advanced Credentialed Mediator through the TMCA.  She is a member of all of the organizations lived above & several more.  She is a licensed attorney with over 22 years experience.  Houstonia Magazine in their December 2013 issue listed her as one of the top family law attorneys in the Houston area.  

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