Divorce mediation is a private process in which a neutral third person (a mediator) helps divorcing couples reach a mutually satisfactory settlement of the issues in their case, including child support, custody and visitation, alimony, and property division. A mediator does not act as a judge, arbitrator, or counselor, but assists the spouses in reaching a voluntary agreement.
Mediation is one of the most frequently used methods of negotiating a property or custody agreement in Texas divorce cases. An attempt at mediation is required (or strongly recommended) in many Texas counties. Travis County, for example, requires mediation when it’s anticipated that a hearing before a judge on a family law dispute will take three hours or more.
Mediation has many benefits in divorce cases, including:
A divorce mediation process can be as long or as short as the spouses determine is necessary to negotiate a full and fair agreement. Mediation could take place in one or two sessions in one week, or many sessions over a period of months, depending on the complexity of the financial and custody issues involved and the willingness of the spouses to negotiate and compromise. Mediation almost always takes less time than going to court and is usually much less expensive than a contested divorce case.
You and your spouse may be in the same room for the entire mediation, or you may meet in separate sessions so that you can give the mediator your opinions and positions in private. After meeting with both of you, the mediator will assess where you and your spouse agree, where you need some work to reach agreement, and how you are going to accomplish this. For example, if you and your spouse are dealing with the question of who stays in the family home, the mediator will help you figure out what information and materials you need to make a decision (such as financial records) and will ask each of you to commit to bringing these to the next session.
Once you reach an agreement—for example, regarding a parenting plan—the mediator will reduce it to writing in what’s known as a “Rule 11 Agreement” (this refers to a section of the Texas Rules of Civil Procedure). Once both you and your spouse sign the agreement, it is a binding and irrevocable agreement that gets filed with the court. If you and your spouse have both hired attorneys, they will use your Rule 11 Agreement to compose the more formal, final divorce paperwork that will be presented to the court for signature.
If mediation isn't working, or if you and your spouse have reached agreement on most, but not all issues, you will probably end up in court, where a judge will make the final decisions on any remaining divorce issues.
If there is a history of domestic violence or substance abuse in your relationship, you may not really be in a position to engage in mediation. For example, if you're the victim of domestic abuse, your spouse will undoubtedly have the upper hand in mediation, and may even try to intimidate you with the threat of further physical abuse in order to force you to accept an unfair agreement. The agreements made during mediation must be voluntary; if you're afraid of your spouse, or if your spouse is forcing you to accept unreasonable terms, you will walk away with an unfair agreement.
If you're in this situation, you should contact an attorney and the local police department and/or domestic violence advocates for help. The National Domestic Violence Hotline number is: 800-799-SAFE.
If the court orders you to go to mediation, you’ll probably use court-appointed mediators, and you’ll be required to pay a fee. If you want to hire a private mediator, your attorney will have suggestions, or you can get recommendations from others, such as a therapist or a friend who’s been through a divorce. You can also check out Texas mediators on www.mediate.com. Make sure that you only work with a mediator who has experience in divorce cases -- ideally, one who is an experienced family law attorney.
Find a wealth of information on how you can save time and money by browsing through our section on Divorce Without Court. You'll find information on divorce mediation, collaborative divorce, arbitration and private judging.
There's much more about divorce mediation and how to find and choose a mediator in Divorce Without Court: A Guide to Mediation and Collaborative Divorce, by Katherine E. Stoner.