Over the years, I have learned that most clients truly believe they want their “day in court.” They think that an all-knowing, all-wise judge, with all the time in the world, will believe their version of the facts. And, at the end of the trial, they will be totally vindicated and walk out of the courtroom with everything they want.
But as any experienced family lawyer will agree, courtroom decisions are often significantly different from what the parties expect. Judges’ dockets are congested, allowing limited time for hearings and consideration of the parties’ positions. The judge will strive to be fair, which often means giving something to each side. Rarely is there a clear “winner” walking out of the courtroom.
But one thing is certain for people walking into the courtroom—they will surrender all control over the most important aspects of their lives to a complete stranger. When you invite the court into your life and affairs, different rules apply. For example, a judge deciding child custody issues has likely not met the children, nor visited each parent’s home. Yet, parents surrender their decision-making authority hoping for the best.
Mediation offers a unique alternative to the parties – whether they are represented by lawyers or prefer a private mediation. (A private mediation is where the parties, with the help of a mediator, negotiate a binding settlement agreement themselves, after which the lawyers are brought in to draft the final documents and make the necessary court filings).
Who is better suited to make decisions regarding children than their parents? Who is better suited to make decisions regarding the division of property and debts than the people who must start a new life with such property and debts?
A skilled mediator is essential to the process of making sound decisions. The mediator listens to the parties to identify their most important goals and assesses the facts and law applicable to the case. A seasoned mediator has a solid grasp of how the judge will likely rule on certain issues. An effective mediator will help each side formulate offers and responses towards the ultimate goal of each party achieving a better result than what they likely would achieve in the courtroom—the proverbial win-win. A seasoned mediator will work hard to put a settlement package on the table that makes it both unwise and difficult for either party to walk away.
Mediation is a worthwhile exercise to resolve family matters. There is value in having all of the decision makers in the same place at the same time. Having everyone focused on the matters at hand during a condensed time frame is much more efficient than, for example, busy family lawyers exchanging emails that may not be read for days.
There is value also in exploring creative options available to the parties. While judges are bound by the Texas Family Code, mediators are not. A mediator with years of experience practicing family law has a repertoire of creative solutions that actually work.
There also is value in the confidentiality of mediation. By law, a judge cannot force a mediator to testify at trial or otherwise reveal information about the mediation. On the other hand, courtroom testimony about your property or your family’s dirty laundry becomes a matter of public record. There is tangible value in being able to speak freely during mediation while working toward a private solution versus airing each other’s grievances and shortcomings in a public forum.
Finally, and perhaps most important, the mediated settlement agreement signed by the parties at the conclusion of a successful mediation is binding and irrevocable. The judge cannot change it, but rather, must enter an order consistent with it. There is tremendous value and a sense of peace when walking out of mediation with a negotiated, binding agreement, rather than a judgment being imposed on the parties by a court.
Choosing the right mediator is essential. As a board certified family lawyer, trial lawyer, mediator, and CPA with over thirty years’ experience, I know what it takes to put together a case, try a case, and resolve a case. And, I understand how family law judges think. I am uniquely qualified and committed to helping you resolve your divorce, custody, modification, property, or other family law matter – whether the parties are represented by lawyers or prefer a private mediation.
