There are several reasons why in Texas most divorces finalize in mediation rather than final trial in front of a Judge. But what exactly is mediation and why settle in mediation rather than trial? Mediation is a private process where both parties negotiate the outcome of the division of their property and children with only the assistance of their attorneys and a mediator (a third unbiased person) and no Court intervention.
Basically, mediation is an informal settlement conference where both parties appear with their attorney. The mediation will have been 1. Court ordered or 2. Agreed Upon. Court ordered means exactly that- the Court ordered that the parties attend mediation. And agreed upon means both parties agreed to attend mediation. Mediation can be free or have a fee attached to it, and either the Court appoints a mediator (rarely happens) or the parties’ attorneys agree to the mediator, date, time, and place of the mediation.
Why would mediation be Court ordered?
While mediation is not mandatory by Texas law, most Judges make it mandatory that parties attend mediation before final trial in their Courtroom. Since at mediation, parties have the ability to make their own terms and in light of cost, time, and efficiency,
Cost- It is expensive to carry out a suit to final trial, even more so to a final trial with a jury versus paying a mediation fee that is often split between the parties. In some counties, they even offer free mediations.
Time- It will take the parties longer to finalize their divorce if they take it to final trial (an agreed divorce can be granted in 61 days and a contested divorce usually takes over a year).
Efficiency- It is by far more efficient to agree at mediation because the agreements are on YOUR terms - not wholly on your terms- but wholly on BOTH parties’ terms. This means that you and your spouse take into consideration the most important aspects of your property and your children and figure out what really needs to happen to get it divided practically, maybe not equally per se, but practically for you two.
Another perk of mediation is that parties can agree to any term, any legal term, though a Judge wouldn’t necessarily grant such a request.The Court is forced to only give what is in the Code book and nothing else. This means that though there may be something that really is in the best interest of the parties - paying college tuition, keeping a spouse on the insurance after the divorce, etc., the Court cannot grant it. However, in mediation, the parties can negotiate it into their terms.
Why would mediation be agreed upon?
Mediation is often agreed upon for the reasons stated above. Additionally, mediation is beneficial, if only, to agree to minor terms and save the bigger issues for trial. This can also reduce the time in trial thereby reducing attorney’s fees, court costs, etc.
Is mediation ever WAIVED?
In situations where domestic violence has occurred, the Court will waive mediation. Or if you truly believe nothing will be agreed upon and will just be a waste of time, then your attorney can request a waiver of the requirement and state your strong reasons as to why.
In conclusion, there are several beneficial reasons for attending mediation and those reasons account for the majority of why most divorces settle in mediation.