Wednesday, April 19, 2017

Secrets to picking a good family law mediator in Texas

How to pick a mediator
By Fran Brochstein    
office 713-847-6000                                                                                

Anyone that takes a 40-hour intro course in Texas can call themselves a mediator.


What is more frightening, is that anyone can call themselves a mediator. There is no regulation of mediators in the State of Texas.

I bet you did not know that fact! 

The State Bar of Texas regulates attorneys - not mediators. 

In fact, in Texas there is only one organization that credentials mediators. Belonging to the Texas Mediator Credentialing Association is totally voluntary and they have a grievance process for only their members in the State of Texas. 

I find that very few family law mediators join the TMCA. Therefore, there is no grievance process or any governmental agency that controls the mediator if you are unhappy with the mediator's services. 

After doing this over 10 years I can tell you that after I took the basic training I was dangerous. I was a lot like a kid that had just gotten their training wheels off their bike - unsteady and wobbly - unsure of what I was doing.

I had been an attorney for 15 years when I took the basic training to be a mediator and I had attended many mediations as an attorney - but shifting to the mediator role was very different.

Mediation requires vastly different skills than litigation. It takes a while to develop and grow as a neutral facilitator (aka “mediator”).

I take a lot of continuing legal education even as a mediator.  Why? Because I take classes in family law and mediation. I can honestly say that I learn something at class that I attend. I call it "adding to my tool kit".

So if I was looking for a mediator this is what I would do - 

I would want one that is Credentialed by the Texas Mediator Credentialing Association.  

I also belong to the Association of Attorney Mediators. They offer malpractice coverage for their members. There is an application process that is required to join and a potential member must have letters of recommendation from people that they have mediated for in the past.

I find that many mediators do not carry malpractice coverage. Quite frankly, it's difficult to pursue a malpractice claim against a mediator, but I like knowing that I have coverage in case someone attempts to sue me.

I also belong to the following mediation groups:
Association for Conflict Resolution - Houston Chapter
Texas Association of Mediators (TAM)
Academy of Professional Family Mediators
Association of Family & Conciliation Courts
Texas Mediator Roundtable (for trainers of mediation)
Houston Bar Association - ADR section
State Bar of Texas - ADR section

I have found that there are only a handful of Houston family law mediators that belong to most of these groups. Quite frankly, it's expensive to belong to all these groups so don't fault a mediator if they don't belong to all of them. However, I think that a committed serious mediator needs to belong to at least a couple. 

You also need to be aware that anyone can call themselves a mediator because, at this time, Texas does not regulate the field of mediation. And, you do not need to be an attorney to be a mediator. In fact, some excellent mediators are not attorneys.

Please don't assume any attorney can be a mediator. In fact, a good litigator has a hard time shifting into the mediator role. I've caught myself in mediation having to take a break and remind myself that I am only the mediator and I cannot give legal advice or tell the person that their attorney is wrong even though I know the legal advice is incorrect. It's difficult to keep my mouth shut, but if I serve as a mediator then I must carefully walk this potential minefield.

In my introduction I like to remind the parties that today they are the “boss” and they are the ones making all the decisions. I also remind them that I have no “magic fairy dust” to make everyone be reasonable.

I’ve heard it said that if a settlement is reached at mediation and both parties "hate" the mediator then that is a good mediation. The mediator’s role is to be neutral and to help the parties reach a resolution they can both live with. 

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