There are two primary kinds of mediation in Texas. The mediation model historically used in litigation disputes is the most common method. It offers the parties a chance to tell their stories to a neutral third party, the mediator, who assists both sides in reaching a resolution. It facilitates settlement, and is less stressful than going to court. In Texas, the mediator is normally an attorney. At Hance Law Group, we typically use mediators who are attorneys specialized in family law (frequently ex-judges) for this kind of mediation process. Mediation usually takes place in the mediator’s office with a client and his or her attorney in one room and the other client and attorney in another room (called caucusing). The mediator caucuses with each side, taking proposals back and forth, in an effort to find each party’s best compromise position. These mediations normally start in the morning and continue on the same day as long as necessary.
When an agreement is reached, the attorneys draw up a mediated settlement agreement (the “MSA”) which is irrevocable and enforceable if it meets the requirements set forth in the Texas Family Code. All parties and their attorneys sign this agreement just as if it were a divorce decree. The mediated settlement agreement is then incorporated into a Final Decree of Divorce, which is presented to the court.
In contrast to Collaborative Family Law, the mediator and the lawyers do not share the risk of failing to reach a settlement. Further, the mediator only has limited influence on parties who are being unreasonable or stonewalling. This model of mediation is also rather expensive because the parties are paying the mediator’s fee as well as their attorneys’ hourly rates. However, if it settles, the costs of going to trial are eliminated.
Another kind of mediation is practiced by non-lawyers (and some lawyers), and is commonly called pre-litigation mediation. In this model, the parties remain in the same room with the mediator, and the process is generally divided into multiple two to three hour sessions. The parties may or may not have attorneys, but the attorneys do not normally attend the mediation sessions. A good mediator is essential to the success of this process. If you are interested in determining if it might work for you, ask us in your initial consultation. We are also available to act as a coach or consultant to you if you choose to use this kind of mediation.
In this representation, the lawyer takes on the role of “coach” for the client who is mediating without lawyers present. Since the lawyer is still considered by most to be the primary resource for legal decision making, many clients are seeking lawyers who are knowledgeable and supportive of Alternate Dispute Resolution procedures, and who are willing to represent them on a limited basis throughout the mediation process. Some parties who go directly to a mediator to work out their family law problems would like to have an attorney to consult with before, during and after mediation to make sure they are making reasonable decisions. This meets the client’s goal of controlling their family dispute, but also gives them a level of protection of their legal rights. Some clients will only want the lawyer to review the final agreement. Others will want the lawyer to help identify and select the mediator; review and negotiate the terms of the mediation agreement; suggest a proposed agenda for the sessions; review the progress of the sessions; refer to outside forensic experts; have direct contact with the mediator to better explain the client’s position; draft the final documents; and generate ancillary closing documents (or only certain of these responsibilities).
About the mediator
Larry Hance began mediating family law disputes in 1990 and has maintained a high settlement rate in his practice. His initial training was in the caucus, positional bargaining model, but he sought a more effective approach for families. After taking a several year hiatus from mediating, he attended two additional advanced mediation trainings: The American Academy of Matrimonial Lawyers Advanced Mediation Training in 1999; and the Harvard Law School Negotiation Project Advanced Mediation Training in 2000. With this additional training and independent research he has done in the area of negotiation and problem-solving, Larry is delighted to be mediating once again and offering this additional option to clients. He is willing to mediate in the caucus model described above, but prefers the pre-litigation model, when the parties and attorneys are willing.