Understanding Mediation

"The courts of this country should not be the place where the resolution of disputes begin. They should be the places where the disputes end – after alternative methods of resolving disputes have been considered and tried.”
-Justice Sandra Day O’Connor

What is Mediation?

Mediation is an informal process in which a neutral third-party (the Mediator) assists in resolving a dispute between two or more parties. The role of the mediator is to facilitate discussion between the parties, assist them in focusing on the real issues, and generate options for settlement. The mediator will not decide if either party is "right" or "wrong." The mediator will not force any party to accept a settlement that is not agreeable to everyone, and the mediator will not give legal advice.

What happens at mediation?

At the mediation, the parties will sit down with the mediator in private and explain the problem as they see it and how they think the matter could be resolved. The mediator oversees the discussion to allow each party a full opportunity to be heard in an atmosphere of cooperation and respect.

Does the mediator meet with both parties together or separately?

Mediators can either work separately with each party, acting as a go-between, or with both parties present in the same room. There can be advantages and disadvantages to each approach, depending on the circumstances of the particular case. This is a question that the parties should address in advance with their attorneys.

Do I have to attend meditation?

In certain circumstances, mediation is required. For example, in both Harris and Fort Bend Counties, parties are required to participate in the Alternative Dispute Resolution (ADR) process prior to any temporary orders hearing in which custody is an issue. Likewise, one party can petition the court to order ADR participation prior to trial.

Can we go to mediation without a court referral?

At any time, even before a case is filed, the parties may agree to attempt to resolve their dispute by attending mediation. You do not need a court order to enter into mediation.

Is mediation always appropriate?

No. Mediation is not recommended in cases involving family violence.

What types of issues are decided at mediation?

Generally speaking, anything that can be decided in Court can be agreed to in meditation. As it relates to family law, issues such as conservatorship (custody), child support, visitation, property division, spousal support, debt allocation, use of the marital residence/motor vehicles, geographical restrictions, etc are often settled in mediation.

What happens if we reach an agreement?

The mediator will then draft a Mediated Settlement Agreement (MSA). The parties and their attorneys will review the proposed agreement, and if it accurately reflects the desires of each party, it will be signed (by the parties and their attorneys, if present) and filed with the court. Once filed, it has the effect of a court order.

What if we agree on some things and not others?

This is fairly common. Any issues not settled in mediation will go before the Court.

What if I change my mind after signing the agreement?

I can not stress the importance of fully understanding and agreeing to ALL of the terms of the MSA. Once signed, most MSAs are binding and irrevocable. You will have to abide by the terms of your agreement (even if you change your mind the next day).

How long does mediation take?

Mediations are usually scheduled for a ½ day (4 hours) or a full day (8 hours).

What if we can’t seem to agree on anything?

An impasse will be declared, the mediation will end, and the parties will then go before the Court to have the judge decide.

Who can attend the mediation?

Typically, the parties involved and their respective attorneys may attend. In some cases, parties are allowed to bring along one support person, but that individual will not be allowed to participate in the mediation. It is not appropriate to bring children to mediation.

How much does mediation cost?

In some cases, the parties may attend meditation at a local dispute resolution organization free of charge. However, if a private mediator is used, the parties should expect to pay by the hour. The cost is usually split equally between the parties.

Why is mediation so important?

1. For starters, mediation is private. The only ones present are the parties, their attorneys, and the mediator. Courts are open to the public. So, in addition to various individuals, there will also be court personnel and other attorneys present. It is a lot easier to discuss aspects of your personal life in private rather than in front of an audience of complete strangers.

2. Decisions concerning your life should be made by you, and not for you. The judge does not know you or your children, and you will be forced to comply with the Court’s order whether you like it or not. Mediation requires compromise between the parties and individuals usually leave feeling as if they had a “say so.” After a court proceeding, however, one party always feels as if they got the short end of the stick.

3. Mediation is also confidential. The mediator can not be called into court to discuss anything you may have told them. This encourages the parties to be as candid as possible.

4. Mediation is cheaper and faster than going to trial.

Do I need a lawyer to go to mediation?

You do not need a lawyer, however, if there are substantial legal issues involved, it is best to consult with an attorney about what your legal rights are prior to going to mediation. Mediators may or may not be lawyers, but in mediation, the mediator cannot give legal advice to the parties. You are entitled to bring your attorney to a mediation session if you wish.

10 Holiday Tips for Divorced Parents

Divorce is emotionally draining, especially during the holidays and special occasions. Divorced parents must communicate with even more diplomacy, patience, mutual understanding, respect, and tolerance than married couples planning holiday travel, dinners, reunions and gift-giving. Juggling schedules during marriage is hard, and it only gets harder after divorce.

Here are 10 tips for making sure everyone enjoys special occasions:

1. Plan Ahead

Develop a parenting schedule before the holidays.
Avoid scheduling the children for dinner with Dad at noon and a second turkey dinner a few hours later with Mom. Instead, arrange for Dad to spend the entire day with the children in all odd-numbered years, and have Mom spend the holiday with them in all even-numbered years.

If possible, hire a parenting coordinator, usually a child psychologist or divorce lawyer appointed by the court to act as a decision-maker until a judge makes a different decision. You have quicker access to the coordinator than the judge, but the coordinator must be paid.

2. Keep Your Word

Stick to the schedule. Arrive on time and drop off the children on time.

3. Keep in Touch

If the children are not with you for the holidays, call them, and be sure to send cards or email. Consider celebrating the holiday or birthday before or after the actual day. Children love parties and gifts any time - nothing fancy - but something special you create just for them.

4. Let the Children Keep in Touch

If the children spend the holiday with you, let them speak with the other parent. Give the children any cards and email from the other parent, and read the messages to young children who cannot read. If the children are too young to call, help them make or receive a call, and let them have a quiet moment to speak with the other parent. Make sure to avoid planning an exciting activity like gift-opening at the same time that the children are scheduled to speak with their Mom or Dad.

Remember, children usually have a short attention span, so do not blame the other parent if conversations are short.

5. Safe Travel

Make travel arrangements with airlines for long-distance travel. Airlines provide supervision for unaccompanied minors for a nominal fee.

6. The Art of Gift-Giving

Coordinate gift-giving with the other parent. Do not give your child a cell phone if you know Mom is giving her a phone. If your ex-spouse will not cooperate, go ahead with your own plans, but do not complain to the children about the other parent.

7. Acknowledge the Child's Right to Enjoyment

Let your child take gifts to your ex-spouse's home. Conversely, if your child brings home a new toy or bicycle, let your child take it back to her Dad's home, if she wants.

8. To Each His Own

Let the children spend Mother's Day with Mom and Father's Day with Dad.

9. Create Your Own Celebrations

Do not insist upon attending your child's birthday or graduation party if your ex-spouse is throwing the party. Give your own party on another day.

10. Give Your Child Permission to Love Both Parents

Help your child buy or make a gift and card for the other parent, if the child is too young to handle the tasks herself. You are doing your child a favor, not your ex-spouse, because you are giving your child permission to love the other parent - the best gift you can give.


By: Sharyn T. Sooho