The use of mediation as a conflict resolution mechanism has been increasing among McKinney residents, as well as throughout Collin County and Dallas County. Many of the parties now turning to mediation are using it to help negotiate divorce settlements. For many divorce proceedings, both contested and amicable, mediation has time and again proven to be an appropriate, and beneficial option. Please read below for a brief overview of mediation—its mechanics, benefits, and limits.
Mediation is a form of alternative dispute resolution (ADR). Understanding that not all parties need, or prefer, to resolve their disputes through traditional litigation avenues, the Texas Legislature now permits parties in dispute to use alternative means to resolve conflicts. The mechanics of mediation (like the other forms of ADR such as, arbitration are governed by the Texas Family Code. In the traditional courtroom litigation process, disputing parties present their arguments in a public court overseen by a judge. Mediation, and ADR generally, is different from that traditional litigation route in a few key ways. First, it lets couples who seek a resolution to their dispute in a private setting, away from public eyes. For many couples in McKinney, this means that they can cut a large portion of the legal work out their divorce cases. Additionally, this ADR form is popular because it provides divorcing couples with a specially trained, impartial third party (the mediator). In the Dallas Fort Worth area, mediation proceedings occur in neutral settings, such as a lawyer’s office, or a neutral conference room. However, due to the increased flexibility of mediation proceedings, no particular setting is required, and the use of remote mediation is also available in a growing number of circumstances.
Many couples find that this increased flexibility enables mediation to be a cheaper, less stressful, and more efficient option than traditional litigation. Additionally, in mediation, it is the parties themselves that craft the resolution. In fact, many couples refer to this “driver’s seat” mentality, as a predominant reason for preferring this ADR method over traditional litigation, where all matters of the case are decided by the court with little input from the parties themselves.
Typically, mediation sessions can last up to a full day. At first glance, this may seem like a daunting timeline, but this a single day of negotiations is significantly shorter than traditional litigation, where the parties are routinely required to wait several hours even for relatively minor hearings. If, at the expiration of the allotted mediation time, the couple is unable to arrive at a mutually-agreeable solution, the parties will be left to make a decision between three options: (1) if a solution is close at hand with only a few minor details to be resolved, the parties can request the mediator for a brief extension; (2) if a solution seems likely, but not imminent, they may request the mediator schedule an additional mediation session; or (3) if a mediated solution does not appear to be within reach, the parties can simply call for the cessation of negotiations, and begin preparations for a different approach. Of course, whether a case can be resolved within the scheduled amount of time will depend on the number of contested issues between the parties and their relevant positions on those issues.
Mediators are always neutral, third-party individual. This means that the any person who may have an interested relationship (professional or otherwise) with one of the parties is barred from participating as the mediator. The mediator’s impartiality ensures that no undue influence will pollute the mediator’s efforts to guide the parties to an agreed solution. DFW area mediators are renowned for their command of various negotiation techniques and conflict resolution training. The mediator’s role is to help the parties arrive at their own solution by keeping the parties on track and drawing attention to the strengths and weaknesses in both parties’s positions. And while most mediators are licensed attorneys, they are prohibited from offering legal advice to either parties during the course of the mediation process.
Unlike traditional litigation, in which a judge issues a final decision, mediators have no legal authority to compel the parties into agreement. This means that the mediator cannot force either party to accept any term that he or she will not accept. Rather, mediator’s role more akin to a guide who helps the parties through the mediation process and, ultimately, to an amicable resolution.
As was mentioned above, many North Texas couples find mediation to be a great choice. Such couples have benefited from mediation in the following ways:
Once the parties have arrived at an agreement, their lawyers will compile all of the agreement’s key terms and provisions into a written term sheet. This document is called the Mediated Settlement Agreement (MSA). Both parties will have the opportunity to review the MSA after it has been drafted, but before the conclusion of the mediation session(s). Assuming the MSA mirrors the parties’ agreement, it will be signed by the parties, their attorneys, and also the mediator. After signing, the parties’ lawyers will draft a Final Decree of Divorce. Again, the parties will have the opportunity to review the Final Decree so that its accurately reflects the MSA. After the final draft has been approved by both parties, the FinalDecree will be presented to and signed by the Judge. At that time, the agreement will have the force of law behind it.
Even amicable divorce cases, couples likely will not agree on every aspect of their split. This is normal and does not present an insurmountable issue for mediation. When a couple is unable to agree on a specific term or issue, then they can continue with the mediation for all other terms, but revert to another ADR method or even traditional litigation for the remaining, unresolved issues. Because of this win-win aspect of mediation, it is almost always beneficial for couples to at least make a good faith attempt at mediation before resorting to alternative approaches.
If you would like to discussion mediation with an experienced lawyer, contact our offices at (512) 746-7399 to speak with one of our McKinney mediation lawyers and learn whether mediation may be an appropriate avenue for your matter.
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