Most (if not all) of the courts in Collin County require mediation before a trial in family law cases, including divorce and child custody cases. Most courts in Dallas County and Denton County have similar rules in place. Because I feel that in most cases a settlement is preferable to a trial, I almost always advise my clients to mediate, even if there is not a court order to do so. When the parties cannot settle the case informally, mediation is a great tool to help reach a settlement prior to trial. This saves the parties the financial and emotional costs of a trial. In addition, the parties can agree to a variety of creative options in mediation that a judge could never order.
If your case is headed to mediation, your attorney should prepare a mediation statement for the mediator. I always send mediators a letter explaining the issues in the case and where my client stands on those issues. I set forth my client’s priorities and goals in the case and let the mediator know of any problems that I think could arise from the other side during mediation. I also send the mediator the most recent offers made by each side, if offers have been made. This helps the mediator jump right in at mediation without wasting time coming up to speed.
Mediation is generally a long and slow process. You and your attorney will sit on one room and the other party and his or her attorney will sit in another room. A neutral mediator will go back and forth between the parties to help facilitate a settlement. Sometimes the mediator is in a room for fifteen minutes, and sometimes the mediator is in a room for hours. Many mediations last a full day in family law cases. Divorce cases with minor children usually take the longest because there are both property and custody issues that most be addressed.
The vast majority of the time my client is sure that the case has no hope of settling at mediation, and the vast majority of the time those same cases do settle. Once a settlement is reached, the mediator will prepare a Mediated Settlement Agreement (MSA) for both parties and their attorneys to sign. The settlement can dispose of all or some of the issues in a case. The MSA is binding, and neither side will be able to change their mind later about the terms and back out. After the mediation, one attorney (usually the petitioner’s attorney) will prepare a final order based on the MSA (if a full settlement was reached). Depending on the type of case, one party may have to appear in court to prove up and finalize the final order.