Spouses and parents that find themselves facing a lawsuit over divorce or custody often hear the word "mediation".  There are many misperceptions about what mediation is and how it works, and litigants wonder how effective it is.  Today's blog will answer these basic questions.

What is mediation?

Mediation is an informal settlement negotiation process.   The purpose is to facilitate the parties reaching an agreement to avoid the need for contested litigation. 

Who attends mediation?

In the divorce context, both spouses attend the mediation, along with the lawyers representing each party and the lawyer designated as mediator.

What is the role of the mediator?

The mediator is a neutral, whose job is to facilitate negotiations with the hope of helping the parties reach an agreement. 

What is the format of the mediation?

Two different basic formats of mediation are available.  The first is know as "caucus" style.  The second is known as "conference" style.  In a caucus mediation, the parties are separated from each other in different rooms, and the mediator goes back and forth between the rooms to speak with each party and his/her attorney separately.  In a conference mediation, everyone remains in the same room to discuss the issues openly with each other.  Most family law mediations are done caucus style, although the mediator can elect the format based on the circumstances of the case.

What about confidentiality?

Everything that is shared with the mediator is confidential by law.  The mediator cannot and will not share confidential information with the other party, unless you specifically authorize the sharing.  The mediator cannot later be called as a witness in Court to testify about the settlement negotiations or information shared with the mediator.  Neither party will be permitted to testify in Court about what was said at the mediation.  The purpose of this confidentiality requirement is to encourage both parties to be completely candid in the negotiations.

Is mediation binding?

Attending mediation is generally binding, since most Courts see the opportunity for settlement and therefore order that the parties attend in good faith.  However, it is not a requirement that the parties reach an agreement at mediation.  If a settlement agreement is reached, the mediator will prepare a document called "Mediated Settlement Agreement".  Once signed, the agreement is legally binding and neither party may withdraw from the agreement.

If you are contemplating a divorce, mediation will probably be in your future.  It is important that you have the expert guidance of an experienced family attorney on your side.  The attorneys of Christiansen Law Firm have handled  hundreds of divorces and mediation, and can assist with your case.  For additional information, contact the offices of Christiansen Law Firm in Houston or San Antonio.