What is Mediation?
Mediation is a form of alternative dispute resolution. The idea of a mediation is that discovery work and preparation have been completed so that the case is ripe for settlement. With a mediation, we sit down for a limited period of time with a mediator in a caucus environment. In a caucus situation, the parties are in separate rooms with their attorneys, and it is a fifth person, the mediator, who will go back and forth between the rooms in an attempt to narrow issues and facilitate settlement negotiations. Good mediators are adept at filtering the conversation so as to keep the settlement negotiations on track and pointed in a positive direction.
Often with mediation, the issues are already outlined and limited. For example: If the couple has children and property, but there are no issues about the children, then the time spent in the mediation is focused on the property. Vice versa, if there are issues about the children but not about the property, the mediator, the parties and their lawyers can concentrate on settling the issues about the children. Lastly, issues can arise in a mediation that is a surprise to one side. While this may seem unusual and a bit unfair, a good mediator can roll with the surprises and its far better to learn of them in the mediation than in court.
Mediation is Confidential
The parties can talk about their case to other people, but the attorneys and the mediator cannot. With a good mediator, the client is still in control, but the mediator will lead you to an acceptable conclusion. The clients might not think of certain options as acceptable at the outset of the mediation, but during the mediation process the mediator will shine light on facts that have been overlooked, or perhaps that have not been considered. During the mediation, the mediator helps the clients understand what the court will consider important and why it is usually better to settle their case in mediation rather than having it decided by a judge in a trial.
Is Mediation Court Ordered in Every Divorce Case?
In most cases mediation is ordered by the court unless there is a good reason to not have mediation. When one side believes that mediation would not be appropriate they can go to the court and challenge what is called the court’s standing order for ADR participation. In Harris County, Texas for example, the standing order in all the family courts states that the case will be mediated at least 30 days prior to trial. The reason for the order is because the judges know that the success rate for mediation is very high. About 95% of cases that go to mediation settle at mediation. Most of the family courts in Harris County now require mediation even prior to temporary order hearings, particularly if child custody is an issue.
Ernest Martin is an Experienced Mediator
I am a mediator and I enjoy doing mediations. In fact, I strive to be an attorney who is really a full-time mediator. I think that reasonably minded attorneys have a skill set that makes them good mediators and those same reasonably minded attorneys often become better attorneys by becoming mediators. One of the things I enjoy about being a mediator is that when the session is over, if I’ve been able to help the parties reach a good agreement, it is something that I can feel good about. It is something that I take home with me and say, “I helped a family today,” and I’m very proud of that.