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Mediation: How does that work?

Mediations happen all the time in Family Law, whether divorce, custody, grandparent rights or another type of case. Most cases settle and many if not most settle at mediation.


So what is Mediation?


Mediation is a process whereby the mediator attempts to get the parties to reach an agreement. Typically, during a modern Family Law mediation, the parties begin and end in separate rooms. Often they never see each other during the entire mediation.


The mediator is a neutral 3rd party that goes back and forth between the rooms until the case settles, an impasse is declared, or the end of the scheduled mediation is reached. Most mediations are scheduled as either “half-day” or “full-day” mediations, although some are scheduled for shorter or longer periods.


While in the rooms with the parties, the mediator discusses the pros and cons of the case and often points out weaknesses in each party’s case. Usually, the mediator focuses on discussing the weakness of a party with that party. In other words, the mediator is not a cheerleader for either party when speaking with him or her. Many times, each party will believe that the mediator is on the other party’s side because the mediator only focuses on the weakness of the party with whom he or she is speaking.


Mediations are a part of most family law litigation if the case is not settled at an earlier stage.


The court can order the parties to mediation, and often does, prior to allowing the case to come to trial. In some cases, the court will order that the case be mediated more than once. Some cases mediate based on an agreement of the parties, without a court order.


Although some people mistakenly believe that mediation or hiring a mediator is something that is only done instead of hiring an attorney, the reality is that having an attorney is the only way for a party to properly obtain legal advice.


In its ETHICAL GUIDELINES FOR MEDIATORS, the Texas Supreme Court has stated clearly that a mediator “should not give legal or other professional advice to the parties,” meaning that if parties try to mediate without having attorneys there is no one present to give them advice as to what their rights are and how they should proceed.


Moreover, although there are some non-lawyers that claim to be competent family law mediators if such a mediator gave any legal advice to either party, he or she would not only be acting contrary to the Ethical Guidelines for Mediators but engaged in the Unauthorized Practice of Law.


For the most part, divorce and other types of family law are zero sum games – what one party gets, the other does not, and vice versa. Being in a mediation without a trained legal expert who is duty bound to advise as to what one is entitled to and how best to achieve it can have devastating consequences.


One of the most important aspects of the law for which a party needs competent legal counsel is the wording and meaning of any proposed Mediated Settlement Agreement – the MSA. Once an MSA is fully executed, it is virtually written in stone. If a party signs one that contains critical errors, he or she may make a deal that cannot be undone…ever.

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