Mediation FAQs:

Can you distinguish what is mediation in divorce cases and how does it work?

Loughmiller: Sure. Mediation is an alternative dispute resolution process in which the parties, with their attorneys, will meet with a mediator and discuss the different issues that they have with their case, whether it be child custody related or property issues. You do all this outside of the court process. The hope is that you reach an amicable resolution and don’t have a lot of anger over the divorce itself and hopefully come to a good conclusion.

A lot of times, the mediation process will actually start after a lawsuit’s been filed, and after you’ve gone through the discovery process. But it will happen before any opportunity to go to court for final trial.

When does a court order mediation?

Loughmiller: In most cases, the court will order mediation as part of the trial schedule. So, if you go into a case where there’s a scheduling order, the court’s going to require you go to mediation at least 60-90 days before a final trial date.

There are some cases that are not suited for mediation, and in those cases you would file a motion with the court asking the court to not make you go to mediation or to waive the mediation process. The judge would generally want to know why you feel the case can’t be settled in mediation and why you would have to go to court.

Probably the easiest example of that would be in a child support situation where child support in most states is calculated based on some type of mathematical equation or percentage of time with the children or percentage of income. So, there’s not a lot of room necessarily to negotiate a settlement. It is what it is.

Unless you have somebody who’s willing to deviate from those guidelines that are established by the various states, you’re not going to settle on mediation. And the trial itself is going to be a very short trial. It’s going to be maybe a one-hour or two-hour hearing at best; the court’s not going to necessarily make you go through a full day of mediation for something like that.
Loughmiller: Family law does take up the majority of time on a court docket, for example in Collin County about 50 percent of the court’s docket is made up of family law related cases. So in a lot of cases they’re using mediation as a process for managing their docket, and making sure that cases do get the opportunity to settle rather than just lining them up and trying to get every case that’s on their docket through a trial process.

So, one of the couple would file for divorce, or as you said they’ll file a lawsuit, and then they go to court with their individual lawyers and the court says that they have to go to mediation. Is that the process?

Loughmiller: Generally speaking, what will happen before you get to that point is that you’ll file your lawsuit. The other side will generally file a counter petition for divorce or some type of answer. You will go through a discovery process, which is requesting documents, in some cases saying interrogatory sort of questions that you want the other side to answer.

A lot of those questions really are not geared towards why the divorce is happening as much as it’s that we want information concerning your employee benefits. We want information concerning your bank accounts, property that you own.

If there is a child custody issue, we’re going to want to know generally what the schedule for the children are. Who primarily takes the kids to the doctor, for example? Who will be the one that will attend parent-teacher conferences in most cases? Just general questions like that to get an understanding of how these people lived their life.

And then once you have that information, before you would schedule a trial, you generally will agree to go to mediation. If you have a side that doesn’t want to go to mediation or go through that process, then you would file a motion with the court and the court would then enter the scheduling order and make you go through that process.

What happens in the case where spouses aren’t speaking with each other or there seems to be a significant power imbalance? Can those people still have success in mediation?

Loughmiller: They can. The benefit of going through a mediation process is that you have enough controls in place through each side having an attorney. You have the third-party mediator who is usually an attorney.

In a lot of cases here in North Texas, the mediator is a retired judge. So the benefit there is you have a person who is not making a decision that’s binding on the parties, they’re giving the parties the opportunity to reach their own agreement. But at the same time, they’re basically saying look, I was a judge for 20 years and I’ve seen your case in court. Here’s what I would do if we were in court, or, on this particular issue, you have an opportunity to be creative and potentially do something that’s more beneficial to you.

That helps offset some of that imbalance that you may feel you have going into the divorce process, because the mediator is going to look at, let’s say, a woman who feels like her husband is very controlling and dictating what will happen in the divorce.

The mediator will have the opportunity to essentially tell that person, look, to get a fair result you’re not going to be able to control everything. There are statutes that dictate what child support should be. There are ranges of settlements, property divisions that the courts will generally deem to be reasonable, and you’re going to have to fall within that range.

It does help offset some of that. So there is a tremendous benefit even in cases where the parties have a lot of acrimony or they just simply don’t speak. They’re going to be protected. They’re not in the same room together.

Unlike other mediations that you might see in a commercial litigation practice where everybody starts out in the same room where they give a position statement, and then they break up and go into their individual caucuses.

In most divorce mediations, at least in my practice here in North Texas, you don’t start out in the same room. You start out in separate rooms and the mediator will work between the two rooms so that you eliminate any anxiety between the parties if they just don’t feel comfortable sitting in the same room and talking to each other.