Being Board Certified in Family Law and trained in civil and family law
mediations means that I do a fair number of divorce and custody mediations-sometimes
as many as 10 to 12 in a month! I enjoy the mediation process and have
found that it is very successful in resolving family law matters of all
types and levels of contentiousness.
Recently I have conducted a number of family law mediations very, very
early in the life of the case. When successful, these mediations have
saved the parties time, significant amounts of money, and, most importantly,
much of whatever relationship they still have with their soon-to-be-ex
spouse. The latter is perhaps the most valuable of these savings, especially
when children are involved.
Typically, a divorce mediation takes place after a couple of months or
more of litigation. On average, my office mediates cases between 4 –
8 months after they are originally filed. This occcurs for a number of reasons:
- Sometimes it takes that long to get ready for mediation, especially if
there are complicated community property issues.
- Sometimes it takes a trip or two to the Courthouse for the parties to realize
that they are much better off negotiating their own resolution to their
important property and custody issues.
And, sometimes, parties and attorneys simply follow the
historical inertia of Texas family law cases – file the case, go to a Temporary Orders
hearing to determine temporary property and custody arrangements, exchange
inventories and other information about the case, set it for final trial
and then go to mediation, which, in approximately 90% of divorce cases,
results in a settlement of the case.
The question is, could an early mediation have settled the case without
some or all of those steps?
Family law attorneys are more and more questioning these “typical”
litigation strategies as economic factors, and an always increasing desire
to salvage relationships and protect children, lead to better ways to
Collaborative Law is a great example of a new way of thinking about dispute resolution. Early
mediations in divorce, and other family law cases, is also a potentially
good option for the right case.
Parties and attorneys are using early mediation in cases with relatively
simple estates, or in which both parties have a complete picture of their
community and separate property estates so that little to no investigation
is desired. In more complicated situations, the parties can also get to
an early mediation by agreeing to quickly exchange statements and other
information about their property so that both parties have the information
they need to settle the case. Often, after filing for divorce, the parties
will even continue to reside in the same residence while waiting to attend
the early mediation. This results in other savings, including avoiding
duplicate expenses for a place to live and, potentially, avoiding a party,
or both parties, having to move twice (out of the residence into temporary
lodging and then, often only weeks later, into a more permanent new residence).
With agreement and cooperation, a mediation can be conducted within a couple
or few weeks of filing for divorce, avoiding unecessary litigation expenses
or the need for a Temporary Hearing or Temporary Orders. If the parties
resolve all their cusotdy and property division issues at the mediation,
the attorneys can get to work on the final paperwork and the parties can
often be divorced as soon as the 60-day texas waiting period has passed.
Even if the parties can’t work out all their final issues, often
the early mediation will 1) get them on the same page as to the process
necessary to move the case forward as quickly and efficiently as possible,
2) resolve temporary issues so expensive pleadings or hearings aren’t
necessary, and 3) lead to a later successful mediation costing less time
If you think an early mediation might be successful in your case, or simply
don’t know and would like to find out, you should discuss the possibility
with your family lawyer during your very first consultation. Often, if
the option isn’t explored early, the chance is missed and you fall
back onto the traditional track to divorce missing the “innovation”