Mediation: What Is It, and When Do You Mediate in a Family Law Case?

Mediation is a commonly used method to settle family law cases and is an alternative to the formal process of going to trial. The Texas Family Code (TFC) Sections 6.602 and 153.0071 set out certain requirements for a Mediated Settlement Agreement (MSA) to be binding on the parties.

Some courts require mediation prior to a hearing on temporary orders, particularly if custody is in issue, some require mediation prior to trial only if custody is in issue, and others require it in all cases, although some courts do not require it at all. The attorneys can agree to a mediator, or a court might make a recommendation for a mediator. The requirement of mediation can be waived if there has been a finding of family violence as defined by TFC section 71.004.

The mediation process involves the parties, their respective attorneys and a mediator. The mediator is an objective/neutral party who can facilitate an agreement by making suggestions and offer possible solutions. The parties are separated in two conference rooms, along with their respective attorneys. The mediator goes between the rooms attempting to resolve the issues in the case. The mediator asks each side of the dispute to caucus, which is a confidential meeting of a member of one side of a dispute to discuss options and attempt to find a resolution.

A mediation ends in one of three ways:

  1. The parties agree, and their agreement is drafted into an MSA.
  2. The parties don’t agree, but the mediator thinks with additional negotiations that the parties might be able to come to an agreement, in which case the mediator will call a “recess” and schedule the mediation for additional time on another day
  3. The parties can’t come to an agreement, and the mediator declares an “impasse.”

The advantages to obtaining an agreement in mediation are that it saves parties’ energy, time and money, it is a confidential process and it avoids drawn out litigation.