Monday, September 3, 2012

Family mediation in Texas

Mediation is an affordable, effective, alternative to litigation that preserves the ability of the parents to work together to raise their children.

In family mediation, the parties (and their attorneys - if the parties hire attorneys) meet with a neutral third party facilitator known as a mediator - who assists them in reaching their own settlement.

The mediator guides and assists the parties in coming to their own outcome.

If the parties come to a decision, it is final and binding on the parties.  That means, if a decision is reached a Mediated Settlement Agreement (also known as a MSA) is signed and is filed with the Court.  It cannot later be changed by either party.  It is a final decision -- just like a judge ordered and signed it.  In other words, if you sign it, you are "stuck" with it.

The parties then need to get the agreement typed up by an attorney so that a Judge can signed the final order so that it can be enforced by the Judge in case one of the parties does not follow the agreement.  The mediator that prepares the MSA cannot do the paperwork for the Judge to sign.

The mediation process empowers the parties by giving them the power to make the decisions regarding their future without a Judge making the decisions.

The mediator is trained to remain neutral.  The setting for the mediation is more comfortable and relaxed than at the courthouse and there is usually less stress on the parties.  The parties are allowed to communicate more openly than is allowed in front of a Judge.  The mediation process is confidential -- except when child abuse or criminal activity is concerned.

A family mediator has taken the basic 40 hour mediator training plus an additional family mediation training class.  Additionally, most family mediators have taken many additional mediation classes.  In the Houston area, mediation training is offered year round.

You do not have to be a lawyer to be a mediator.  In fact, many excellent mediators are not attorneys.  Most of the Harris County family law judges will not appoint non-lawyer mediators at the present time.  I believe this is because they want mediators that are familiar with the Texas Family Code.  Prices for mediators vary dramatically.  My rates are $250 per side for a 4 hour mediation - which is very reasonable for Harris County mediators.

There are 2 free mediation services in the Harris County area - Dispute Resolution Center and the Harris County Domestic Relations Office.  The DRO has their own staff.  I volunteer at the DRC and have since 2005.

If no agreement is reached by the parties, then the mediator notifies the Judge than an impasse was reached - nothing else.  No details regarding what happened at the mediation ever leaves the mediation process.

Normally the parties save money by participating in mediation rather than pay an attorney for a trial in front of Judge.  Plus, they save the emotion toll of a trial.

One of the roles of a mediator is to try to balance the needs of the child and the desires of the parties.  The mediator assists the parties in identifying the areas of conflict.  The mediator brainstorms possible creative solutions that might not be possible if presented to a Judge who would be limited to following the Texas Family Code.

The mediator can spend more time than a Judge has in getting to know the parties and the children to determine what are going to work best regarding visitation in the long run and avoid conflict between the parties.  The mediator looks at ways to make it a win-win for both parties.

The mediation process can take several hours.  My longest mediation took over 10 hours.  Everyone wanted to continue because we were making progress.  There were many complex issues and no one wanted to leave.  It look several "drafts" of the Mediated Settlement Agreement to get it right and have everyone sign it.

Usually only the parties attend mediation.  Sometimes if a party has re-married, the new spouse is allowed to attend.  Normally, fiances are not allowed to attend.  (FYI: Rarely teen-age children are only allowed to attend -- if everyone agrees and then they would be in a separate room and they would be interviewed by the mediator and then a third party would drive them home.)

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