Mediation is an assisted settlement negotiation. It is a process by which the parties attempt to settle some (or all) of the issues in the case without the necessity of intervention from the court. It is the most common method of settling more complex cases, although it can be used in all types of cases. It is now mandatory in most of the Texas Family Courts for parties to attend it prior to the court hearing or a final trial.In many courts it is mandatory even before a court will decide on the merits of a Temporary Orders (Step 2) hearing, and is Step 4 in the 5 Steps of Every Case. Click here to download an E-book.
Where Does it Happen?
Mediation usually consists of the parties and their lawyers meeting in a neutral location with a Mediator. Sometimes one attorney or the other will host the Mediation at their office but the most common practice is to have mediation held at the mediator’s office. Some mediators will also allow a party that is physically not present in the city or state at the time of mediation, attend the mediation via video conference or call. In cases such as these, the attorney still physically appears at the place for it and the party must get this approved by the mediator first.
Who is the Mediator?
The Mediator is also an attorney, or an ex-judge who is trained and certified to become a mediator. Normally the parties agree on a Mediator, but if they cannot agree, then the Court will appoint a mediator instead. In cases such as these, the Judge will attempt to pair the parties with a mediator with a high settlement rate.
How Much does Mediation Cost?
Prices for each party in Mediation range from a $250 to $2,000. Typically, but not always, mediation is $500 for half of a day (4 hours). Prices depend on the length of mediation and the quality/credentials of the mediator. The quality varies greatly, and some Mediators are better than others for particular situations, types of clients, and can relate to certain parties. Some cases don’t require great mediator skills because parties are going to settle whether there is mediation or not. Other cases are impossible to settle without the intervention of the court. The great majority of cases will, however, settle under the right circumstances, and in these cases the quality of the mediator is essential.
What Happens on the Day of Mediation?
Mediations start with the parties in separate rooms, each party with their lawyers. Most of the time the parties never see or hear each other. Instead, the mediator acts as the mouth-piece relaying relevant information to the other party (and their attorney). The Mediator starts with the side that filed the suit (Petitioner) and gets to know their side of the story and gets the first offer from this side. The mediator will then float between rooms, exchanging offers and information to all of the parties.
The first set of offers are normally wildly apart and it‘ll look like the case will never settle. Then as the day wears on, the offers tend to be closely aligned with each other. Many mediations then reach a crisis moment, where one side says ‘take it or leave it’. This is a key moment in the mediation. Usually, it turns out that it is not really a ‘take it or leave it’ offer, but instead a signal that they are getting tired of giving up things that they want. A skilled Mediator knows how to tell the difference.
How Does Walters Gilbreath, PLLC Handle Mediation Differently?
Our focus is on preparation for Mediation. Since most cases settle at Mediation, being prepared and effective at Mediation is often the single most important part of a case. I have the following guidelines for making Mediation work for my clients:
- Choose the Best Mediator: I have an approved list of Mediators that I have experience with. This list is recorded and I select from the list carefully and attempt to choose a mediator that will be best for that particular client.
- Work Up the Case: The case needs to be prepared thoroughly in Step 3 – Discovery, in order to be ready to Mediate it. All of the information relevant to the case needs to be collected: financial documents, witness interviews, documentary evidence, digital evidence, and more should be collected and exchanged. Then, the information needs to be organized in a way that is easy to understand.
- Prepare the Client: Clients have no idea what to expect at Mediation and it is not fair to just have them show up without knowing what to expect. Prior to mediation, I try to meet with my clients in-person (at least a week before Mediation is scheduled). We talk about what to expect and what would be a fair settlement. Think of this as a planning session.
- Fight hard at Mediation: Everything is negotiable and just about anything is possible. If you get to a Trial, a Judge actually has far fewer options. I work with my clients to try to achieve a better outcome than they’d get if they’d gone to court instead.
Don’t be Afraid of Trial (Step 5): Trial is the most difficult and stressful part of being a lawyer. Many lawyers shy away from it (although they won’t admit that). I like being in the Courtroom and often get better outcomes there than I would have at Mediation. You should be sure to hire an attorney that will thoroughly represent you and prepare for trial (jury or non-jury) if required.
STEP 4 – MEDIATION