What is Mediation?

When did you stop to think about divorce? What is the first image that comes to your mind? If you are like most people, I am willing to bet that the first image relates to that of a packed courtroom with onlookers, court staff in a judge intensely interested in the proceedings of your case, as well as the inner workings of your relationship with your spouse. All the while, you and your spouse’s attorneys are trading objections and other arguments back and forth with one another while a judge bangs on their gavel on a near-constant basis.

Huawei, is it that so many people have this belief in place regarding a typical divorce case? Is it because reality matches this perception? Or could it be because we have been trained to think this way by movies and television? I tend to think that it is the latter of the two possibilities. The fact is that we have all seen movies and television shows that depict dramatic divorce cases that are based on courtroom scenes just like this. Nothing is more interesting to an audience than drama with money and related to the marriage involved.

As a result, these types of storylines are played up by writers of all sorts and have been rolled into our living rooms and movie screens for decades. You may even have a few scenes going through your mind right now. It isn’t difficult to pick apart a few movies or television shows focused on a courtroom drama centered around courtroom activities. Divorce trials can be interesting for outside onlookers but can be extremely stressful and difficult for you as a spouse going through the trial. That is where the rubber hits the road in terms of divorce reality versus divorce in the media.

Fortunately, the reality of a Texas divorce looks little like the hyped-up version of a divorce that we see on television and in the movies. This may cause a divorce to be less interesting, but that’s not what we are here to discuss. What we need to talk about is what your divorce is likely to look like. Next, we need to discuss how your divorce is likely to conclude. If not in the courtroom as we have been discussing today, then where? What do you need to prepare for in your divorce to complete the case and put yourself in a position for success?

Work smarter, not harder in a divorce, to achieve successful results.

There is no question that a divorce is hard work. It is hard for you, your family, and your attorney. That much is a given. Even in the most relatively stress-free environment, a divorce is no fun for anyone involved. On the other hand, a divorce can be productive if you are goal-oriented and intentional about achieving those goals. In a trial scenario, a lot of that responsibility falls on your attorney. In a courtroom, the general rule is that you cannot speak unless spoken to by your attorney, the opposing attorney, or the judge as the person going through the divorce. This can be a difficult realization to come to, given that you probably have a lot to say about your situation.

Not only is a trial a tough process to go through from the perspective of not being able to speak out as much as you would like during the middle of the proceeding, but it is also a lot of work for you and your attorney to get to this stage of a case. A trial is not at all a situation where you and your lawyer can stroll into the courtroom and start dumping a great deal of testimony onto the judge’s lap, leaving it for them to sort out. Rather, your attorney will spend a great deal of time preparing your case and preparing you for trial. This is necessary given the high stakes of a divorce or child custody trial.

In addition to the time aspect of preparing for a trial, we also have to consider that your attorney and their staff must be paid for the time committed to preparing your case. It is not uncommon for the costs of a divorce trial to be more (sometimes much more) than the costs associated with the rest of a divorce case combined. The same can be said for you if you are going through a child custody case. In certain circumstances, a trial may be necessary. You may find that this is true for you and your family. However, that generally speaking also means that your case will become a lot more expensive as a result. You can’t put a price on the happiness of your family, but the costs of a divorce or child custody case may test that idea.

We have just covered how time-consuming, difficult, and costly a divorce or child custody trial can cause your case to become. If you are completely new to the process of divorce in Texas, this may be enough to cause you some indigestion. If this is a typical divorce, then why would anyone want to submit themselves to that process? Wouldn’t more people prefer to stay in a marriage, even a less than ideal one, rather than go through an expensive and long divorce case?

Fortunately for you and most people who go through a divorce, the situation I just described is more the exception than the rule. You can file for divorce, proceed with the case and complete your divorce without ever stepping one foot inside of a courtroom. While this should give you some degree of optimism regarding the possible direction of your case, the question that we need to ask ourselves is how to avoid a difficult trial in favor of another outcome. Basically, how can you best position yourself to avoid a trial in your divorce or child custody case?

Be goal-oriented in a divorce or child custody case.

It is not enough to file paperwork and participate in a divorce if you want to avoid a trial and accomplish anything of meaning in your case. Rather, you need to have goals that you can seek to achieve. These goals should be well thought out, tangible, and need to be your own goals. Without putting goals like this into motion, your “goals” are more or fewer thoughts or general aspirations for your divorce.

Goal-oriented people typically achieve more in a divorce. Having goals in mind for your case means that you are focused on achieving objectives in your case rather than merely floating from day to day and hoping that the result of your case is favorable to you. Having goals shows that you have thought about the possible outcomes and have arrived at decisions that will benefit you and your children in the future. A goal-oriented person shows that you have determined what you want your future to look like and how you will achieve that future.

However, having goals is not enough on its own. Rather, you must be intentional about achieving those goals. Trust me when I say there are ample opportunities during a divorce to be sidetracked or focus on issues that will not help you accomplish your goals. For example, I counsel clients all the time about not falling prey to antagonistic or annoying traits of your spouse during a divorce. You are much better off trying to work with your spouse to conclude your case rather than getting bogged down on issues and temporary circumstances that may be frustrating at the time but do not add much of anything to the overall direction of your case.

Next, I always recommend to clients that to avoid a difficult trial in a divorce or child custody case, they begin to focus on the individual components of the most important case. For you and your family, what are the most important aspects of your case? Do you have particular concerns over post-divorce spousal maintenance? Are you concerned with your children being able to see both parents after divorce on an equal basis? What about concerns over selling your house or retiring comfortably? These are all valid thoughts and concerns to have, period; however, when a valid concern turns into a tangible goal, then you have turned the corner on your case, and you can talk about accomplishing things rather than just being worried.

Finally, I find that goal-oriented people are less likely to waste time in a case. Many people use the long, somewhat drawn-out periods of a divorce to focus on setting up goals for themselves and their families. My advice to you would be to think about goals early on in your case so that you can use these periods of somewhat idleness to work with your spouse on completing your divorce rather than using that idle time to create goals. Once you have set goals for yourself, you will not look at time as something merely wasted or withstood. Rather, you can use that time to actually accomplish goals and work towards completing your case sooner rather than later.

Rather than viewing a trial as the natural end to a divorce or child custody case, my recommendation is that you begin to look at negotiation and mediation as a much more preferable end to your family law case. We were discussing how there is a great deal of idle time in a Texas divorce. That idle time can be spent with you and your spouse doing several things. You could spend the time bickering and go back and forth on seemingly small issues that will have no importance to your case in a couple of months. You can also use that time by ignoring your case and focusing on more pleasurable areas of your life. Or, you can use that time to negotiate with your spouse over the important elements of your divorce.

That is the great thing about a divorce case: you have all the time in the world to make decisions that can either positively impact your case or negatively impact your case. It is up to you and your spouse how to use that time. With that in mind, you may be asking yourself how you can work to have a productive end to your divorce when your spouse has been anything but helpful in terms of working with you. Does this mean that you will be stuck going to trial even though that’s not your want or desire?

Fortunately, it is my experience that it typically takes 2 to tango when it comes to arguments and disagreements in a divorce. I mean that if you do not engage in the back and forth in the fighting with your spouse in a divorce, you can typically avoid situations where arguments and disagreements lead to hostility and courtroom appearances. Note that in a divorce, when you and your spouse engage in disagreements with one another that the most likely outcome is a trip to the courthouse to have the judge play tiebreaker if you all cannot resolve those issues on your own.

As a result, if you can keep focused on those goals we were discussing at the beginning of your divorce, you will be in a great position to resolve your case earlier and avoid disagreements with your spouse. For many people in a divorce, the last thing they want is to have to work with their spouse on anything. Isn’t that the main reason why people get divorced in the first place? Namely, disagreements with their spouse and inability to get along with one another?

With all of that said, you have the ability within your divorce case to set aside your differences to focus on bigger goals. Even the most disagreeable spouses can usually set aside their differences and do what is best for their children. This is true in a divorce or child custody case. So, even if you and your spouse have very little in the way of shared objectives when it comes to your marriage, you can at least focus on your kids and do what is best for them.

When it comes to finding a middle ground with your spouse or parent in a family law case, I have found that mediation is a great place to focus on what brings you all together rather than what divides the two of you. Mediation there is a circumstance where you and your spouse or co-parent will mutually agree to allow a third party family law attorney to intercede into your case and attempt to work out a settlement of the major issues that are facing you in your divorce or child custody case. The mediator will act as a liaison between you and your spouse to communicate settlement offers and relay information.

Historically, mediation has occurred at the mediator’s office with both you and your attorney in one office and your spouse and their attorney in another. With the advent of technology, virtual mediations have become more common. Whatever circumstance you find yourself in as far as the physical location of your mediation, the preparation involved will be the same. Both you and your opposing party are more likely to achieve success if you can be intentional about achieving your goals and plan for them, but the major negotiated upon points in mediation will be.

The mediator is typically an experienced family law attorney him or herself. This gives you all a great opportunity to rely upon that person in part for their perspective as to what will likely happen in a divorce trial. Whereas you have been relying upon your attorney for their perspective the entire case, you now will have an independent and noninterested party be able to give their advice when it comes to handling matters outside of mediation. Mediation allows you and your spouse or co-parent to settle on all, some, or none of the issues of your divorce case or child custody case. Any issues not settled in mediation can go to the court, where a shorter trial can be held than had mediation not been attended.

Whatever circumstances you find yourself in, you should work with an experienced family law attorney to help you in that setting. Well, mediation is certainly less formal; it must be nerve-wracking than a trial; it is still advisable to have an attorney present with you. Not only can that attorney help you negotiate, but it can give you perspective when it comes to the different areas of your case that you are negotiating through. Additionally, there is a great deal of preparation that comes with attending mediation. Having an experienced family law attorney available to help you do so is extremely important.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys are available six days a week to discuss any issues of your family law matter in person, over the phone, and via video. A free of charge discussion in consultation with our office can be helpful not only to learn more about the world of Texas family law and learn how your family circumstances may change if a family law case is filed.

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