Do I Need a Family Law Attorney or a Mediator?
Divorce is scary—not only do emotions (and stress) run high during a divorce, but there are many different ways that the process can go. Divorce pertains to all of the most important aspects of our lives: our children, our businesses, our retirement accounts, our real property, and there are a wide variety of factors that will impact how best to navigate your divorce. Because of this, you need to understand the differences between hiring a divorce lawyer and hiring a mediation professional before deciding how to proceed in your particular situation.
Mediator vs. Lawyer
To make an informed decision for your unique situation, you should know what separates the litigation process from mediation. Both approaches have value, and almost every Texas family law case goes to mediation at some point during the life of a case, because almost all family courts either require mediation or severely limit your trial time if you decline to mediate. Both approaches can also result in drastically different outcomes for your divorce. For most cases, it will not be a question of if you mediate, but when.
What is Mediation?
Mediation is a form of settlement negotiation conference where both parties (and their attorneys) attend, using a trained, neutral third party. The mediator has either been selected by the agreement of the divorcing spouses, or appointed by a judge, and is either a very experienced family law attorney or former family law judge who has taken special training in mediation. Generally, each party and their attorneys are together in separate rooms (or in a Breakout Room, if the mediation is held via Zoom), and the mediator will go between those rooms to try and negotiate a settlement agreement. The case is negotiated this way until either an agreement or impasse is reached.
If an agreement is reached, then the mediator prepares a document called a Mediated Settlement Agreement (MSA), which is then signed by all of the parties, their attorneys, and the mediator. Once signed, it is binding and irrevocable (this is one of the only ways to reach an agreement that cannot be changed later). If an agreement is not reached, the mediator will instead send a letter to the Court stating that the case did not settle.
What is a Litigated Divorce?
When spouses can’t agree how best to settle their issues in a divorce to the point that court intervention is considered, we consider it to be a litigated divorce. This can include very heated disagreements over child custody, spousal support, asset division, or how a business gets divided. When it’s clear that spouses cannot resolve issues on their own, then a pleading (a written request requesting a hearing on specific issues) gets filed with the court. Eventually, a family court judge will hold a trial on this pleading. You have the right to represent yourself during a trial, but it is wise to work with an experienced attorney to advocate on your behalf.
Roles of Mediators vs. Roles of Lawyers
A mediator acts as an unbiased third party during a settlement conference whose goal is to resolve, or reduce, the number of issues in disagreement between the two spouses. The mediator will assist in these negotiation discussions, but the mediator cannot provide legal advice to either side. Ultimately, whether you choose to settle or not in mediation is entirely up to the spouses. The mediator cannot be called as a witness to the trial, and your offers made at mediation cannot be used against you in court, to protect the confidentiality of the settlement process.
An attorney, unlike a mediator, only represents their client, and the attorney’s job is to obtain the best possible outcome for their client. This can involve giving expert legal advice for how to proceed, or ways to engage in negotiations with the other spouse’s attorney. Divorce lawyers are used during both mediated and litigated divorces because their knowledge of the law, the local courts, and the risks involved with a given decision is necessary for somebody to achieve a favorable outcome.
Is Mediation the Only Way to Reach an Agreement?
In a nutshell—no. There are multiple ways to negotiate and several ways to record an agreement with the court. You can settle before, in, or after mediation, but mediation is usually the best way to settle a case.
There are only three way sin the State of Texas to make an agreement binding and irrevocable (meaning, unable to be changed):
A Mediated Settlement Agreement;
An Informal Settlement Agreement (in a divorce case only); or
An agreement made on the record before a judge, where the judge makes that agreement an order of the court.
No other form of agreement is truly binding in the same way, and can generally be revoked after the fact if it’s not one of the three method listed above.
Is Mediation the Only Way to Reach an Agreement?
Choosing a divorce lawyer or mediator can be a complicated decision, but it’s an important step that has a permanent impact on your life post-divorce. If you and your spouse believe you can reach an agreement over the most important aspects of your lives, then it may be best to hire a mediator for the negotiations. However, even if you choose to mediate, you should still consider hiring a divorce attorney who can litigate on your behalf if negotiations are unsuccessful. This will give you the best chance at achieving your desired outcome in your divorce.
When considering a divorce in Texas, you need an experienced team of specialists who understand the law and your rights, keep your interests (and the interests of your children) as the top priority, and provide fervent, impassioned representation in both court and at mediation. Contact us today and we’ll provide you with bespoke guidance and support to address your family law needs.
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