If you are divorcing in Harris County (or any number of other counties), you are headed for mediation. As a dispute resolution method, mediation is a great option that is often less stressful, less costly, and less time-consuming than litigation. And in Harris County, it's required before you can proceed to trial.
Mediating successfully requires that you prepare well. In addition, if you come to the table prepared for success, your mediation may finish more quickly. That means less time, money, and stress for you.
What Is Mediation?
The Harris County Domestic Relations Office defines Family Mediation (which I'll refer to simply as mediation) as "a process in which a neutral professional assists in identifying issues and resolving disputes between parties." In more plain language, a neutral third party helps you work out an agreement for your divorce.
Who Will Be My Mediator?
In most cases, your attorney and your soon-to-be-ex-spouse's attorney will agree on a mediator for your case. Typically, they will choose a mediator they've worked with before who has a good reputation in the family law community and is experienced in mediating divorce cases.
Many mediators are also attorneys and/or former judges.
To become a mediator in Texas, an individual must complete at least 40 hours of training; Family Law mediators must complete additional training. Your mediator is a highly trained and experienced professional whose objective is to help you reach an agreement. They do not advocate for one side or the other - that is the role of your respective attorneys.
Who Attends Mediation?
On mediation day, you will meet with your attorney at an office - sometimes a mediation center, sometimes the mediator's office, or sometimes your attorney's office.
Some clients are tempted to bring a friend or family member along for moral support. This is often a mistake. To start with, you are not permitted to bring a friend or family member to your mediation without the consent of your soon-to-be-ex-spouse. Even if they do consent, during mediation it is important that you stay focused on the task at hand and think clearly. Having that friend or family member in the room may be a distraction that hampers your ability to make good decisions. Your attorney is your advocate, and you should be prepared to have only them in the room with you (along with any other divorce professionals you've hired to work on your case).
It is OK to call someone during your session if necessary.
In some cases, it's helpful to have your CDFA® professional with you at mediation. They can help you sort through some of the financial decisions you'll need to make and assist in weighing options. Because your CDFA® professional is also a highly trained expert, you can rest assured that, like your attorney, they will act in your interest to help you complete your mediation successfully.
What Happens During Mediation?
You and your attorney will sit in one room while your soon-to-be-ex-spouse and their attorney sit in another. The mediator will shuttle between both rooms during the mediation session. The mediator will introduce themselves to you, explain how the process will work, and discuss with you the important elements of your case. If you have an opening settlement offer, this is when you would share that with the mediator. They will then go into the other room to introduce themselves, outline the process, discuss case details, and present your opening offer (or collect your soon-to-be-ex-spouse's opening offer).
At this point, the negotiations will commence in earnest. This is where your mediator will be the most valuable, since their job is to help you and your soon-to-be-ex-spouse reach an agreement on all elements of your case. Some cases will settle with only one session, while more contentious cases may need more sessions.
Once an agreement is reached, the mediator will draft a document called a Mediated Settlement Agreement that outlines all the things you've agreed on. You, your attorney, your soon-to-be-ex-spouse, their attorney, and the mediator will sign this document. This is the document that will be used as a guide to draft your Divorce Decree.
Mediating successfully means preparing diligently. First and foremost, your inventory of assets and liabilities should be as accurate and up-to-date as possible. That means disclosing current balances for all assets that you control, and using documents turned over during discovery to fill in the blanks on assets you don't control. You may have to spend some time in the first stages of your mediation reconciling any differences between your and your soon-to-be-ex-spouse's inventories. Don't waste precious time and energy during your mediation session dealing with questions that could have been answered days in advance by you, your attorney or your CDFA® professional.
Along the same lines, make sure you know all your user IDs and passwords for financial accounts. You may need to access a statement or other information during the session. In addition to your inventory, talk with your attorney and/or CDFA® professional about having an opening offer prepared and approved by you before your session begins.
Make sure you have a good grasp on the important issues of your case.
If you can clearly articulate to your mediator what matters most to you, they can be more effective in helping you reach an agreement. If you've prepared well, you'll come to the table with an opening offer in mind. Be ready to negotiate around that offer. When negotiating, know which assets you are willing to move into your soon-to-be-ex-spouse's column, and which you aren't willing to have moved into yours.
Lastly, and most importantly, come to the table with a flexible state of mind. You won't get everything you want, and neither will your soon-to-be-ex.
Measuring the success of your mediation can be simple: agreement equals success. However, most clients don't see it that way. In fact, it's common for a client to feel a certain amount of regret after they reach a Mediated Settlement Agreement. They worry that they gave too much and got too little in return. They wonder whether they could have gotten a better deal if they had negotiated a little harder. These are natural feelings to have in the hours and days after you mediate, and they don't mean you've been unsuccessful.
So how can you get comfortable with your Mediated Settlement Agreement? Again, it starts with preparation in the form of managing your expectations. Realize now that you won't get everything you want, and you'll likely feel a certain amount of disappointment with the agreement you reach. If you've selected your attorney with care, you can also place your trust in them as your advocate – they won't allow you to accept a "bad" deal. If you've worked with a CDFA® professional in preparing for your mediation, you'll know with some certainty what outcomes to expect from the proceeds of your settlement agreement. This certainly can go a long way in helping you feel successful.
Are you preparing for mediation? I can help.
 Mediation sessions are generally full day or half day. If you are close to reaching an agreement, your session may be extended by an hour or two so that you can complete your mediation. During longer sessions, either party can request a break as needed.
 If your case involves minors or special needs children, speak with your attorney about preparing a proposed parenting plan before mediation as well. This plan may include a list of rights and duties, a detailed visitation schedule, child support, and health insurance provisions.
This article was written with the kind assistance of Candace Demary, Family Law Attorney at The Law Office of Candace B. Demary, P.L.L.C.
Baird does not have any formal relationships or arrangements with The Law Office of Candace B. Demary, P.L.L.C. This list should not be considered an endorsement of the products or services offered by these individuals or their firms.