Mediation: What Is It? Why Do They Order It?
By Rita M. Boyd, Attorney at Law, FER Volunteer for Seven Years
Mediation is basically a settlement meeting. Not everyone can attend. Only the parties, their respective attorneys and the mediator are present. In other words, no girlfriends and no Mother-in-laws. Thank God.
Everyone meets at mediator’s office. Normally there is a beginning session where everyone is in the same room. During the joint session, the Petitioner goes first and tells his theory of the case and what he wants, (or his attorney can say it). Then, the Respondent tells her theory of the case, what she wants, and why he should not have what he wants. If a fist fight doesn’t break out at this point, the mediator asks any questions that he has in order to clarify the issues in his mind and tells you the rules of the mediation.
Rules of Mediation
The rules of mediation are there for your protection. The most important include the following: the mediator cannot be subpoenaed to testify in Court. The mediator’s notes cannot be subpoenaed. Anything you show the mediator or tell the mediator is strictly confidential and will not be revealed to the other side unless and until you give him permission to reveal it. For example, you might have a damaging piece of evidence on your ex-wife that she has no idea about. If she’s being completely obstinate, you might reveal this ace-in-the-hole to knock her off her high horse. The embarrassment she may feel at having a secret revealed can be quite persuasive. The only exception to these rules is when a crime involving a child is revealed. The mediator has an affirmative duty to report the act.
Only Use Family Law Lawyer as Mediator
You should only use a mediator that is a family law lawyer. The reason is that no one else can tell you what the family court judges are likely to do and what the law is. Yes, you can ask the mediator questions and get his opinion of your case. A layman or an attorney that practices in another area does not have the first clue about family law. Oftentimes they give the complete wrong advice based on their own experience and prejudices. During the beginning joint session, the mediator will tell you his background including how many years he’s been in practice, the area of practice, the number of mediation’s he’s done and what type of law they covered, and the number of successful mediation’s he has done. You’ll want to know these things so that you’ll know if you can rely on what the man says.
After the joint session is completed, the parties split up and go to separate rooms with their attorneys. The mediator moves from room to room while the parties and attorneys stay put.
The mediator will normally start with the Petitioner. He’ll meet with the Petitioner and his attorney and together, they will formulate an opening offer of settlement. Never, ever make your initial offer of settlement the only thing you’re willing to settle for. You absolutely must build in some negotiating room. For this reason, the night before it is a good idea to think about what is bare minimum you want to come out with. Write it down. Mediation’s are long, tiring and emotionally-draining processes. You don’t want to be worn down. You don’t want to be worn down and agree to something you’ll regret the next day.
The mediator will take the Petitioner’s offer to the Respondent’s room. They will discuss it, evaluate it, and make a counter-offer, you and your attorney need to evaluate it and determine whether to continue the mediation or not. Sometimes, the initial counter-offer is so ridiculous that you can tell that it wouldn’t matter if you sat there until doomsday an agreement will not be reached. You don’t want to pay your attorney’s hourly rate to sit there for eight to ten hours when there’s nothing to talk about allotted that you’ve paid for in advance. For instance, for a half-day mediation, the mediator will charge you for his time from 9:00 a.m. until 12:00 p.m. More than likely he will have another mediation or other work to do starting at 1:30 p.m. He’s going to want to be paid for the time after 12:00 p.m., generally. Likewise, after 5:00 p.m. for a full-day mediation.
Some mediation’s go all day and into the wee hours of the morning. This is not a process to be taken lightly. Get your rest the night before, eat a good breakfast and don’t make any plans for that day or night. You need to be in top form. This is not the day to show up hung over. Likewise, if you’re sick, you should reschedule the mediation.
Don’t worry about how much time the mediator spends with the other party. If he spends three-fourths of the day with the other party, it’s probably because either she or the attorney is not being reasonable under your fact situation. In addition, some attorneys don’t know the law. A mediator might unfortunately have to give the lawyer an education.
Or, they might be coming up with some wonderful new settlement that no one has ever contemplated before. I was lucky enough to be the genius during mediation one time. During this particular mediation, the Mother revealed that the Father was not the Father of their two school-age children. The Father had NO idea. He was totally in love with the children and a totally devoted Father. He was crushed. The Mother and her cruel attorney were telling him he had no rights and she would not allow visitation. I came up with the idea of the Father adopting the two children. It was made part of the mediation agreement that this fact never be revealed to the children. Everyone left happy.
Who Pays Mediators Fee
The parties split the mediator’s fee 50-50. Don’t go to the mediation unless she pays half the fee. The reason is that she has no vested interest in the mediation and therefore, no incentive to settle since she’s there on your dime. Likewise don’t pay her attorney’s fees to go. I’ve had people show up the day of mediation and claim not to have the money to pay the mediator to proceed. The message is that if we want to settle, we pay the mediator. Just leave. You’re not going to get anywhere with someone who pulls this. The time this happened to me, I insisted that her lawyer pay the mediator’s fee. He didn’t have much choice since we were their pursuant to Court Order and I told him I’d be filing for sanctions, including my attorney’s fees for having to take off that day.
Court Order for Specific Mediator
Don’t go to a mediation unless you have a Court Order which Orders the parties to go to that specific mediator and to pay his fee. This makes the obligation to go binding as well as any agreement that is reached. The agreement is revocable if the mediation is not Court-Ordered. You don’t want to spend that time and all of that money just to have her change her mind in the morning. If you have a Court Order, the agreement is binding upon the parties all that is left to do is draw up the Order. There is a way to get out of a mediation agreement; but, it’s beyond the scope of this article, not very well known and rarely used.
Why Do Courts Order Mediation?
Why do the Courts Order mediation? Because it works. Depending on what you read, the rate of success is 86% to 93%. It saves time and money. You get to custom design your agreement. You don’t have to wait on the Court system to reach your case. It is not uncommon to have your case set for trial and be reset several times. It’s not your attorney’s fault, usually. Sometimes, cases from the prior week take longer than expected and hold over to your trial time. Judges get sick or have deaths in the family. A tornado might blow through downtown, (Fort Worth).
Think about it. A judge gets a snapshot of your case. She doesn’t know you. She doesn’t know your kid’s special needs and events. Every Judge has policies of their specific Court. Each is their own little kingdom. Those policies and prejudices might be just the opposite of what is in your children’s best interest, i.e., spending time with their Dad, seeing Grandma, etc.
Mediation allows custom-tailoring that might not otherwise be possible. You can agree to things that Judge cannot give you. Did you know that? The Judge is confined to the remedies in the Texas Family Code. A good example is the federal income tax dependency exemption. A little known face is that the Texas Family Judge cannot award the dependency exemption. Awarding the exception amounts to changing the Internal Revenue Code, or federal law, and a state judge cannot change federal law. But, you can make an agreement with your ex-spouse as to who can take the exemption in what years.
In sum, mediation is a great tool for litigants.
Contact Dallas Divorce Mediation Lawyer Rita Boyd
Whatever the particular aspects of your mediation case are, it is my hope that you will call me. Call me right now at 972-380-8000, and make an appointment to come in and discuss your challenges. Together we can! You can also email me.