Many clients have questions about mediation. They have heard the term but are not sure what it means or why it is advantageous when they have a list of demands and are pretty sure the other party will not agree to all of them.

Mediation is a very productive tool in family law cases. It is more of a collaborative approach to resolving a family law case and far less adversarial than going to trial and airing everyone’s dirty laundry on the record. Both parties are represented by counsel in mediation and are typically in separate rooms. A neutral third-party (the mediator) works with the parties and their respective attorneys in an attempt to reach a final agreement in the case. Many courts require mediation. Denton and Collin Counties both require mediation before final trial.

While each party to a divorce or child custody matter comes into the case with his or her own unique perspective and list of demands, if children are involved it’s important that they can each focus on the best interests of the child. Each party’s attorney will work to prepare them for mediation. They will give them the lay of the land and work on a proposed settlement offer prior to the day of mediation. It is important that the parties have completed and provided any necessary documents such as inventory and appraisements, proof of income and proposed possession schedules to their attorneys, if requested. This helps save valuable time in mediation.

Mediators can help parties and attorneys think outside of the box and get very creative with language to include in a final order. Further, the parties can agree to things in mediation that a judge could never order in a trial.  Examples include possession schedules for pets, creative ways to allocate community assets that are not yet liquid, and unique possession schedules for the children that are personally tailored to a particular family’s lives. Often, while each party has their list of demands, each tends to have different priorities.  By focusing on priorities, we can encourage a settlement that both are reasonably happy with.

Once an agreement is reached and the mediated settlement agreement signed, both parties know exactly what the key terms of the final order will contain. There is no guessing what a judge or jury will do. The parties don’t have to leave mediation discouraged only to find that the attorney needs to conduct more discovery, file more motions and prepare for a full day (or longer) trial in his or her case.

Best of all, after a successful mediation, parents can simply focus on moving forward with their lives and  their children without the worry of litigation looming. After mediation, attorneys will work to draft an order based on the agreements reached that will be signed by all parties and attorneys. That order will then be entered, signed by the judge and the case closed.  The order is usually significantly longer than the mediated settlement agreement, but the terms will all be the same. (Blog post by Soheyla Dixon)

The Draper Firm

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It is important to meet with an attorney to determine whether temporary orders are necessary in your family law case. Depending on your county, you may have Standing Orders that govern the conduct of the parties while the case is pending. Standing Orders are binding on the parties immediately and continue until the case is finalized unless specifically modified by the court.

Temporary orders can be very helpful in setting the tone for the case and making sure certain issues are presented and ruled on early on. Temporary Orders are not effective immediately and must be requested by a party. Hearing dates will be set according to the court’s docket and how full the calendar is.

Temporary orders can be entered in any family law case to govern what will happen with various aspects of the case while it is pending.  Temporary orders can relate to child(ren), property and financial matters, including bank accounts.

Typical temporary orders related to children in either a divorce or child custody case include: (1) designation of conservators as either temporary joint managing conservators or temporary sole managing conservator / possessory conservator; (2) what the possession schedule will be for the child with each of the parents; and (3) whether child support will be paid and, if so, how much.

Examples of additional financial matters to consider for temporary orders in a divorce case are: (1) who will get primary use of the marital residence; (2) how community bills are going to be paid during a pending divorce; (3) whether or not one party will pay temporary spousal maintenance to the other; and (4) who will get primary use of any vehicle(s).

Temporary orders can also govern how the parties treat each other while the case is pending and what is said or done in front of the children if the county’s standing orders do not already do so.  Temporary orders can either be reached by agreement, or they can be ordered by a court after a hearing.  Temporary orders hearings are like mini trials.  In Collin County, temporary orders hearings are limited to twenty minutes per side, which can really limit what you can do.  In Denton County, temporary orders hearings are typically limited to thirty minutes a side. In other counties, such as Dallas County, you are often given significantly more time for a temporary orders hearing.  (Post by Soheyla Dixon)

Divorce

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Most, if not all, of the courts in Collin County, Dallas County and Denton County require the parties to mediate before going to trial.  Even when mediation is not required, I almost always recommend to clients that they attend mediation.  Mediation allows you to come up with creative solutions that a judge could never order.  It also allows you to have control over the final result, which a trial does not give you.

Probably 90-95% of my clients are sure that mediation is pointless going in, as they know that neither party is going to compromise enough to reach a settlement.  Yet somehow 90-95% of the cases that I take to mediation end up settling.  There is a reason that mediators have jobs.  If the parties and attorneys could settle cases on their own, mediation would not be necessary.

Typically at mediation, my client and I sit in one room and the opposing party and his or her attorney sit in another room.  At most mediations, we never even see the other side.  The mediator (who may or may not be an attorney) goes back and forth between the rooms to try and help the parties reach a settlement.  By definition, the mediator is neutral.  If the mediator takes sides, he or she will almost certainly lose the ability to negotiate with the other side.  The mediator will often play devil’s advocate in both rooms.

In my experience, the best family law mediators are attorneys with extensive family law experience who know the judges and who know what the most likely outcome at trial is going to be.  They also have a very good grasp of the Texas Family Code to be able to guide the parties when they want something they would never get in court.

Mediation is a slow process.  Although some mediations can be done in half a day, I have been in mediations lasting anywhere from 8-13 hours for family law cases.  The mediators generally provide snacks and lunch.

Occasionally I hear from people who are interested in mediating without lawyers.  Although this may sound like a good idea in theory, it can be a dangerous proposition.  Mediators cannot give legal advice, even when they are attorneys.  This can really cause a party to be blind in the negotiating process, as he or she will have no clue what the law is or what he or she is really entitled to.

Overall, I think mediation is a wonderful process and very helpful in reaching amicable resolutions in family law cases.

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Temporary orders can be entered in any family law case to govern what will happen with various different aspects of the case while it is pending.  Temporary orders can relate to both the child(ren) and other financial matters.

Typical temporary orders related to children in either a divorce or custody case include: (1) designation of conservators as either temporary joint managing conservators or temporary sole managing conservator / possessory conservator; (2) the possession schedule be for the child with each of the parents; and (3) whether child support will be paid and, if so, how much.

Examples of additional financial matters to consider for temporary orders in a divorce case are: (1) who will get primary use of the marital residence; (2) how community bills are going to be paid during a pending divorce; (3) whether or not one party will pay temporary spousal maintenance to the other; and (4) who will get primary use of any vehicle(s).

Temporary orders can also govern how the parties treat each other while the case is pending and what is said or done in front of the children.  Temporary orders can either be reached by agreement, or they can be ordered by a court after a hearing.  Temporary orders hearings are like mini trials.  In Collin County, temporary orders hearings are limited to twenty minutes per side, which can really limit what you can do.  In other counties, such as Dallas County and Denton County, you are often given significantly more time for a temporary orders hearing.

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Many Texas counties have “standing orders” that apply in every family law case filed in that county.  Dallas County, Collin County, Denton County and Kaufman County all have standing orders.  Tarrant County for some reason does not have a standing order in family cases as of the date of this post.

Standing orders set forth the ground rules while the case is pending.  In divorce cases, they prohibit parties from altering or selling property, or for spending money for anything beyond normal living expenses and legal fees.  In custody cases, standing orders can include provisions prohibiting you from moving the child’s school or prohibiting you from having an unrelated paramour spend the night while the case is pending.

When suit is filed, the standing orders must be attached to the original petition.  Although each county’s standing orders are similar, they do have their unique differences.  Therefore, it is very important to read the standing orders for your county.  For example, at the time of this post, Denton County’s standing orders require parents in a divorce to complete a parenting class within 60 days of the filing of the divorce petition.  Collin County used to have a similar requirement, but it no longer does.

Standing orders can eliminate the need for a temporary orders hearing in many cases because the court already provides many of the orders you would be seeking.  However, if you wish to do something against the standing orders, you need either the agreement of the other side or a court order allowing you to do so.

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