People often ask about “mediation” for their divorce when they mean no court and no fighting. But are they asking the right question? Collaborative family lawyer and mediator Julian Schwartz https://basharaschwartz.com/ says, “This question comes up all the time. People don’t want the courthouse divorce nightmare they have too often heard about from others.”
The popular idea is that mediation is a positive, kinder experience for couples who want to amicably divorce. The image in most people’s minds is of a couple and their mediator sitting around a table talking in a candid, straightforward way while the mediator helps the couple resolve their differences and settle their divorce. If the couple needs legal advice, the mediator offers it.
Sounds great, doesn’t it? But is this the reality? In a Texas divorce, mediation* is not positive, not amicable, and not friendly, and mediators can’t give legal advice. Mediation may still be better than the courtroom for many couples, and the success rate of mediation is high, but the process can be rough, and generally neither party is entirely happy with the result.
Mr. Schwartz explains the Texas mediation process. “Typically, the spouses each sit in separate rooms with their respective lawyers while the mediator goes back and forth between the rooms with offers and counteroffers.” Leverage and brinksmanship are how it gets done. It’s stressful and can feel rushed because mediations are usually done in one day.
Also, as Mr. Schwartz explains, “Mediation isn’t a divorce process. It’s a settlement tool that often doesn’t happen until the couple and their family have already incurred all of the financial and emotional costs and stress of the traditional litigation process. In the litigation model, you’re best prepared to mediate when you are ready for trial, meaning you’ve been through the discovery process, depositions, hearings and whatever else the litigation attorney feels is needed to be ready to effectively present the case to a judge or jury.”
If mediation isn’t what people think, is there a calm, respectful, out-of-court way to divorce that gives the couple a lot of say in the process? Yes. A collaborative divorce.
Instead of fighting it out in the courtroom, the divorcing couple sits at a conference table with their lawyers, who do give legal advice. Often, neutral experts will help as collaborative team members. For example, a financial expert can assist the clients and their lawyers with dividing the finances in a way that works best for both parties. A mental health expert, who doesn’t do counseling, can assist with communications in meetings and help the parents to optimize a plan for when the children will be with each parent.
The couple, their lawyers, and any collaborative team members meet anywhere from one to multiple times depending on the complexity and difficulty of the case. The meetings are where the agreements are worked out. After the couple reaches an agreement, the lawyers draft the paperwork. Only one member of the couple needs to go to court at the end. The court appearance is brief and not confrontational.
All is not lost if mediation isn’t what people think. The collaborative divorce process offers the thoughtful, private, client-centered path to divorce many couples seek.
*Early intervention mediation has different procedures. Get information about early intervention mediation and other Texas divorce processes here. [Attach hidden document on Texas Divorce Options]
A version of this article was originally posted on TexasBarBooks.net.