Mediation

Background

Mediation is a process in which the parties can resolve family law disputes with the help of an expert (a neutral mediator) in a confidential setting. This includes matters regarding the dissolution of a marriage, child custody, child support, spousal support, paternity issues, property issues, and other family matters. The mediation usually takes place in an informal setting (e.g. the mediator’s office or remotely on Zoom during the COVID-19 pandemic).

The mediator’s role is to facilitate discussion between the parties. Unlike a judge or arbitrator, the mediator has no authority to make decisions or legal determinations about the disputes. Rather, mediators use their knowledge and skill to coordinate a compromise that is acceptable to both parties. The mediator may suggest solutions based on what other couples have done under similar circumstances.

The Process

The mediation process will vary based on the needs of the parties and the complexity of the case.

Orientation with the Mediator

The parties will meet with the mediator to discuss the process and goals for a resolution. The mediator does not provide legal advice but may serve to inform the parties about the legal process.

Initiating the Legal Proceeding

If the parties have not yet initiated a legal proceeding, the mediator may provide information on how to initiate the action and the required paperwork.

Exchange Information

The Family Code requires each party to disclose certain information to the other party. The mediator will facilitate the informal exchange of information.

Experts

Some family law matters may require the use of one or more experts. Experts may be privately retained, appointed by the Court, or mutually agreed-upon by the parties. The most common types of experts used in divorce proceedings are forensic accountants, real estate appraisers, child custody evaluators, and vocational evaluators or examiners.

Settlements Negotiations

Once the parties have exchanged information, the parties may attempt to settle the case. The mediator will facilitate negotiating the settlement.

Memorializing the Agreement

If a mediation session concludes without a settlement, the mediator may provide the parties with a confidential and non-binding memorandum summarizing the session.

If the parties reach a tentative agreement during mediation, the terms will be memorialized in writing. It is strongly encouraged to have independent legal counsel review the agreement. After independent counsel reviews the agreement, the mediator will prepare an agreement suitable for filing with the court.

Benefits of Mediation

• Mediating a divorce, custody or other family law issue is generally less costly than litigation.

• It is also generally faster than taking a case through trial and the parties, depending on the willingness of the parties to resolve the issues.

• The mediation process is confidential whereas documents filed in litigation become part of a public file.

• The parties retain control over the final result rather than giving control to the lawyers and judge in litigation. When litigation occurs, the parties must follow the judges’ order.

Alternatives to Mediation

While mediation is generally less expensive and far more efficient than litigation, it is sometimes unavoidable such as in situations such as: (1) there are substance abuse, domestic violence or child safety issues; (2) if one party suffers from severe mental illness that renders them incapable of making good decisions for themselves or their children; and (3) one party is completely unreasonable.