As I am sitting here today in Mediation it got me to thinking about what a large role it plays in the domestic or family law litigation. About 30 years ago the legislature passed a law encouraging the use of alternative dispute resolution methods in family law cases. One of those methods is Mediation. Most divorces are referred to mediation and the overwhelming majority of them are settled in mediation. Lots of people have heard of Arbitration such as a forced arbitration clause in a credit card dispute or with Ezekiel Elliot’s ongoing dispute with the NFL.
Arbitration is when the parties present their case to an arbitrator who decides the evidence and renders a decision much the same as a judge. However, Mediation is different because the mediator DOES NOT render a decision. Instead the mediator simply assists the parties find areas of agreement or “common ground.” If the parties are able reach agreement the mediator files something with the court that the parties reached agreement. If the parties do not reach agreement the mediator files something with the court that the parties did not reach agreement. The mediator cannot be subpoenaed to testify.
One of the great things about mediation is that it is confidential. Rather than airing your laundry for the whole world to see in a courtroom you meet privately with your attorney and a mediator and resolve your dispute. Another great thing is you can resolve your case much quicker. According to an article in the Fort Worth Star Telegram last week there are over 60,000 divorce or child cases filed each year in Tarrant County. What ends up happening is they sit on a court’s docket often times for a year as there simply are not enough hours in the day to hear them all.
Perhaps my favorite thing about mediation is that it allows the parties to craft their own solution. A judge is pretty limited in what they can do. They must strictly follow the guidelines in the Family Code. The parties are not bound as tightly. They can decide what is most important to them. They can decide how to craft their solution. I try and most attorneys and judges I know try very hard to do a good job. But no matter how hard we try we will never know your life and your situation as well as you do. I liken mediation versus litigation as the difference between having someone give you a blue Toyota Camry (litigation) or giving you $20,000 and telling you to pick out the car that works best for your needs (mediation). Unless you happen to want a blue Toyota Camry the second option will work better for you.
When hiring an attorney make certain they are familiar with and make mediation a regular part of their practice. I can promise you, you will be happier with the result.
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