Saturday, January 17, 2015

Do I need a lawyer for medation?

Do I Need A Lawyer for Mediation?

Mediation can be extremely beneficial for a wide range of family law cases, but it’s only likely to be successful when you know what to expect so that you may prepare accordingly.  While it’s not required to have a lawyer on hand for your Houston mediation, it is helpful to have the additional guidance from one. 

The goal of mediation is to manage conflicts without having to engage the court system, but there are some situations where you may feel more comfortable with an attorney representing you.  A lawyer can be very beneficial when you want to walk through the ramifications of certain decisions, for example.  Your lawyer might also review your mediation agreement to help you assess whether it’s likely to be effective or fair. 

A lawyer can also provide critical insight about the costs of failing at mediation.  For example, a lawyer will have knowledge about some of the challenges you might face in court, and he or she may be uniquely positioned to help you understand the importance of cooperation and compromise in the midst of mediation.  There are costs associated with ultimately going to litigation, and an experienced attorney may be able to help you see some of those costs if you do become deadlocked in mediation. 

For many cases, however, an attorney is not necessary.  Mediation has multiple benefits when compared with litigation, and you are quite likely to reap those benefits by approaching mediation on your own.  Choosing an experienced Houston mediator can go a long way towards setting you up for success outside of the court.  Mediation can be tailored to the needs of the parties at hand, so carefully consider how your choice of mediator, process, and structure can influence outcomes.  

If an agreement is reached then a lawyer takes those agreements and prepares paperwork for the judge to sign and to make the agreements legally binding on the parties.
In Texas a mediator cannot prepare the legal paperwork for the judge to sign.

Be aware that not all mediators are attorneys.  If the person is not an attorney then they probably don't know what judges require to be included in paperwork that the judge will sign. There are many excellent mediators that are not attorneys - but you need to make sure that you find someone with experience and knowledge of the Texas Family Code.  

Additionally, the mediator is not supposed to give legal advice since they are neutral.  The mediator, if any attorney, can discuss some basic Texas family law concepts but the mediator cannot advise you on what you should do or how a judge would rule in your case.

I have done many mediations with pro se litigants (they are representing themselves without attorneys).  I find that they are very slow and that often when specific details are being discussed the pro se litigant will feel overwhelmed and decide that they need to talk to an attorney before finishing the mediation.  For that reason, I often offer multiple sessions of mediation.  Mediation can be as fast or as slow as the parties desire.  There is a great deal of flexibility in mediation.  I often do not follow the Texas Family Code in mediation -- we look at what is best for this family and attempt to make it a win-win for both parties.  We work to minimize the impact on the children of the marriage. We work to develop strategies to encourage co-parenting by the parents.  As my dad once said - once you have children you are never truly divorced.

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