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Early Mediations in Divorce and Child Custody Cases

A sign with 3 arrows that say "your say," "compromise," and "my say"

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 occurs 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 resolve disputes. 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 unnecessary litigation expenses or the need for a Temporary Hearing or Temporary Orders. If the parties resolve all their custody 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 and money.

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” train completely.

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