As I am sitting here today in mediation, it got me to thinking about what a large role it plays in family law litigation. About 30 years ago, the Texas 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 Ezekiel Elliot's ongoing dispute with the NFL, which is being arbitrated.
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 helps the parties find areas of agreement or common ground.
If the parties are able reach agreement, the mediator advises the court that the parties reached agreement. If the parties do not reach agreement, the mediator tells the court that the dispute remains unresolved. 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 to try to resolve your dispute.
Another great thing is that you can resolve your case much more quickly. According to an article in The Fort Worth Star-Telegram last week, there are over 60,000 divorce and family court cases filed each year in Tarrant County. Cases often sit on a court's docket for a year because 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 Texas Family Code. In mediation, 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 very hard to do a good job, and most attorneys and judges I know try do the same. 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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