DIVORCE MEDIATION BENEFITS AND LIMITATIONS
Mediation is an option at any point in the divorce process, even before a petition is filed with the court. There can be many benefits to settling a divorce this way, but there can also be disadvantages. If you are contemplating divorce or have already started the process, speak with a divorce lawyer about the process and whether this option is a good step for you.
The attorneys at Scroggins Law Group (SLG) have over 100 years of combined experience. Our divorce and family law team is headed by Mark Scroggins, a trial lawyers who is *board-certified by the Texas Board of Legal Specialization in Family Law. SLG helps clients determine whether divorce mediation is likely to be a beneficial option for them. If so, we will attend mediations to ensure your rights are protected throughout the process.
What happens in divorce mediation
When parties agree to mediation – or when a judge orders them to participate in the process – they meet with a neutral third-party mediator who helps them sort through the issues to determine where the conflict lies and negotiate each issue point by point. The mediator does not have a say in how the issues are resolved; they are merely the facilitator who helps the parties reach a voluntary settlement.
If the parties reach an agreement on some or all areas of conflict, it will be memorialized in a Mediated Settlement Agreement that is contractually binding. A final decree of divorce will then be drafted that is specifically based on the terms of the Mediated Settlement Agreement.
Benefits of divorce mediation
Mediation offers certain advantages that make it an attractive option for many divorcing couples.
- Lower costs – Mediation can save time and money. Pursuing a divorce through litigation and trial typically takes a year to eighteen months, and in some cases, can last even longer. A successful mediation can end the process before couples invest in the time it will take to resolve the matter through the courts.
- Less stress – Litigation is inherently adversarial but mediation encourages cooperation. The change in tone can reduce anxiety and encourage a more peaceful end to a marriage on terms to which both parties agree.
- Certainty – When you reach an agreement voluntarily, you do not need to worry about unexpected decisions by a judge.
- Flexibility – Court-ordered divorce decrees and child possession orders tend to follow strict formulas but when you and your ex reach a mediated settlement, you can be creative in crafting solutions that work for your situation.
- Control – A mediation session allows each party an opportunity to speak about the issues as they see them. Each side then, collaborates with the mediator individually in a private caucus to help facilitate negotiations. You may find that having the opportunity to share your side of the story and then have a say in the settlement terms provides a much-needed sense of control.
- Confidentiality – The mediation process remains confidential, unlike litigation, which creates a public record.
Limitations of divorce mediation
Mediation is not the best choice in every situation. Couples with deeply held resentment, high-value assets at risk, and other intervening emotional factors may override any hope for a successful outcome. Other indicators include:
- Domestic violence – When a marriage involves physical violence, bullying, or other emotional abuse, mediation can be uncomfortable and counter-productive. If you have experienced domestic violence, discuss your options with your attorney. You may be able to opt out of a court-ordered mediation or request to participate in a modified process.
- Power imbalance – In marriage, a power imbalance can arise from personality differences, educational or professional credentials, income differences, and dynamics that have evolved in the relationship. Unequal power can be an impediment to mediation, but understanding at the outset can allow you to be more selective when choosing the right mediator.
What happens after mediation
If you and your spouse come to a total impasse, or you settle some issues but not all, you can continue with the litigation process on the unresolved issues only. If you reach a full agreement, § 6.602 of the Texas Family Code provides that the resulting agreement is binding on the parties if it:
- States, in prominent and boldfaced, underlined, or capitalized text, that the agreement is not subject to revocation;
- Is signed by each party to the agreement; and
- Is signed by the party’s attorney, if any, at the time the agreement is signed.
If these conditions are met, the parties are entitled to a judgment on the mediated settlement agreement. There are however, two exceptions. The judge may deny a decree adopting the settlement if he or she determines that:
- The settlement agreement was reached by one spouse’s use of fraud, coercion, or duress; or
- If the agreement is not in the best interest of the couple’s child and either (i) a spouse was unable to make free decisions due to the effects of domestic violence, or (ii) the agreement provides a parent with a history of physical or sexual abuse to have unsupervised access to a child
Once a decree is entered, it can be difficult to modify, making it crucial to consider the long-term impact of the terms of a settlement. Your divorce mediation lawyer will scrutinize any settlement terms before they are finalized to make sure they address your long-term goals.
What happens afteSpeak with a Texas divorce mediation lawyer at Scroggins Law Groupr mediation
If you have questions about whether mediation is right for your divorce, schedule a consultation with Scroggins Law Group. With more than 100 years of combined experience, we understand what it takes to protect you and your family, and we make every effort to ensure that your interests are satisfied. If mediation is unsuccessful, we are fully prepared and eager to take your divorce all the way to trial. We look forward to hearing from you.
Resources:
FindLaw, Texas Family Code – FAM § 6.602. Mediation Procedures, https://codes.findlaw.com/tx/family-code/fam-sect-6-602.html
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*Mark L. Scroggins is *board-certified in family law by the Texas Board of Legal Specialization. Unless otherwise noted, other attorneys are not *board-certified.
**Super Lawyers (a Thomson Reuters service, awarded to Mark Scroggins 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021)
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