Back to Learning Center

FAQ

How Does Mediation Work in Texas? FAQs About Family Law Mediation

What Is Mediation in a Divorce?

Mediation is a non-adversarial dispute resolution process that takes place away from the courtroom. You, your spouse, and your attorneys will meet to negotiate the terms of your divorce in conversations guided by an impartial mediator. Mediation can also be used to resolve other family law issues.

What Does a Mediator Do?

Mediators are specially trained professionals and experts in family law who facilitate discussions between the parties to help them reach a settlement. They don’t offer legal advice but can provide general information about the legal process to help you and your attorneys reach a workable solution.

Why Do People Choose Mediation?

It is not unusual to feel like a divorce or other family law dispute is out of your hands, particularly if the courts are involved. Mediation gives spouses greater control over their divorce as well as more privacy. In a process that can feel overwhelming and personal, reaching an agreement outside of a courtroom can be a viable option for many. Benefits of divorce mediation include:

• Directing the Process and Outcome: You decide the settlement of your dispute rather than leaving it to a judge.
• Saving Costs and Time: Mediation is cheaper and faster than litigation, allowing you to move on with life sooner.
• Preserving Relationships: Protect important family relationships and avoid putting children through the stresses of litigation.
• Keeping Things Simple: If you and your spouse can agree on the terms of your divorce, mediation offers a straightforward, uncomplicated approach.
• Finding Creative Solutions: Mediation allows you to find constructive and creative solutions that are better suited to your individual needs.

What Are the Five Steps of Mediation?

Knowing what to expect from mediation in Texas can help you decide whether or not it is the right choice for your unique situation. Mediation typically includes five steps:

1. Opening Statements: The mediator introduces everyone, explains the process, and establishes ground rules. Each party then presents their perspective on the dispute.
2. Joint Discussions: Parties directly communicate with each other about the issues, guided by the mediator. The purpose of this stage is to foster understanding and clarify positions.
3. Caucuses: The mediator meets privately with each party to discuss their concerns and options or to negotiate. This approach provides a confidential space for parties to explore potential solutions without pressure.
4. Negotiations: With the mediator’s assistance, parties begin to negotiate directly, respectfully addressing each issue and working effectively toward an agreed upon solution.
5. Settlement: Once an agreement is reached, the terms are documented. This ensures that both parties understand their commitments and responsibilities moving forward.

What Are the Rules for Mediation in Texas?

• Mediation is typically voluntary unless it’s court-ordered or required by a contract provision.
• Anything discussed during mediation is confidential and cannot be used in future litigation.
• The mediator must remain neutral and impartial throughout the mediation process. They do not make decisions for the parties but rather facilitate a conversation to help them come to a resolution.
• The parties involved in mediation have the right of self-determination, meaning they control the outcome and any agreement reached. A mediator cannot force a party to accept a settlement.
• The mediator does not render decisions on the merits of the case. Instead, the mediator facilitates a conversation between the disputing parties and helps them agree on a solution.
• Mediators must disclose any potential conflicts of interest that may influence their neutrality.
• The mediator or any party can terminate the mediation at any time for any reason.
• Agreements are documented in writing as a mediated settlement agreement (MSA). This agreement is binding, and Texas courts generally enforce it as they would any other contract.
• Many Texas courts require parties to attempt mediation before a case goes to trial. If the parties don’t reach a mediation agreement, they can proceed to trial.
• Typically, the parties split the cost of mediation, but this is negotiable. If the mediation is court-ordered, the court may specify how to divide the cost.
• The parties should attend the mediation in good faith and participate actively. In some instances, if mediation is court-ordered, the court may have specific rules regarding who must attend.

Will the Mediator Hear Evidence and Make a Ruling Like a Judge?

Mediators are not judges, and they do not make rulings. The mediator has no authority to make either party do anything.

Is Mediation Legally Binding in Texas?

Mediation agreements are legally binding if they are properly drafted and signed by both parties.

How Long Does Divorce Mediation Take?

The length of mediation varies significantly from case to case, but on average, a divorce with both financial and child-related issues takes eight hours of mediation. The more prepared, honest, respectful, and cooperative the parties are, the less time the mediation will take. And if there are substantial or complex issues involved, then mediation will naturally take longer.

How Much Does Mediation Cost in Texas?

The cost of mediation is often between $2,000 and $8,000, but it can vary widely depending on how long it takes to resolve your particular case. A mediator may charge different rates depending on whether you need a full day, one or more half-days, or shorter sessions by the hour. Goranson Bain Ausley offers flat-fee pricing for mediation sessions outside of the traditional half or full-day sessions. If you are also represented by an attorney, then attorney’s fees will also apply for their time spent at the mediation and advising on your case.

Who Pays for Mediation in Divorce in Texas?

Mediation is generally paid for by both parties to help eliminate any concern that one party may receive preferential treatment during the process.

Do You Need a Lawyer for Mediation Before You Can Hire a Mediator to Mediate Your Divorce?

No, you and your spouse do not each have to hire a lawyer to attend mediation. We do recommend that you consult with a family law lawyer before a mediation without lawyers, though, so you will understand the law as it relates to the issues in your case.

Are Mediators Lawyers?

To mediate in Texas, one does not have to be a family law attorney or even an attorney at all. However, we recommend that you hire a mediator who is a family law lawyer so that you’ll know that you’re getting someone who understands the legal issues in your case and knows what you must reach an agreement on to have a complete agreement.

At Goranson Bain Ausley, many of our lawyers are also qualified mediators. And because we have experienced the process from both sides, we can make sure you’re thoroughly prepared to take part in mediation sessions so you can achieve the best possible outcome for you and your family.

Does a Mediator Give Legal Advice?

The mediator will not and cannot give you and your spouse legal advice. The mediator is not hired as an advocate for either party. Instead, the mediator facilitates the settlement discussion and helps you and your spouse problem-solve so that you can reach an agreement.

What Is the Difference Between a Mediator and an Arbitrator?

A mediator does not have the authority to make decisions for the parties involved: Their role is to facilitate communication between the parties and help them reach an agreement voluntarily. In contrast, arbitrators do have the authority to make the final decision regarding a dispute. Arbitrators examine the evidence, listen to testimony from each party, and then render a final decision on the matter. This decision can be binding or non-binding, depending on the agreed-upon terms.

What Is the Difference Between a Mediator and a Litigator?

A mediator acts as a neutral third party, facilitating communication between disputing parties. Litigators, or trial lawyers, represent their clients in court and advocate for a certain outcome. The key difference between a divorce attorney and a mediator is that an attorney is hired to work on behalf of one party, while a mediator is an impartial third party.

Is Mediation Confidential?

All communication in mediation is confidential. The purpose of confidentiality in mediation is to allow the parties to freely discuss negotiation possibilities with the mediator. The rules of mediation prohibit either party from calling the mediator as a witness at trial or using any of the negotiation dialogue as evidence at the trial. Consequently, neither party needs to be concerned about whether they are harming their case should the mediation fail to result in a settlement.

What Is the Success Rate of Mediation?

Approximately 80% of divorcing couples who go through mediation are able to reach a settlement agreement.

Can Mediation Work if My Spouse Is a Narcissist?

Mediation can work in situations where one or both spouses have a high-conflict personality, but it can be quite difficult and time-consuming. If this is your situation, we recommend that you first consult with a skilled family law attorney to understand the pros and cons of proceeding with a mediation.

What Happens if We Can’t Agree on Anything During Mediation?

If you cannot reach an agreement during mediation, your options are:

• Schedule Another Mediation: Disputes sometimes require more than one mediation session to settle. If the dispute is not resolved during the first session, it may be beneficial to schedule another.
• Reach a Partial Agreement: Should the disputing parties agree on some, but not all, of the issues, they can document the agreements and resolve the remaining issues during additional mediation sessions or in court.
• Attempt Another Alternative Dispute Resolution: Disputing parties can pursue a different form of alternative dispute resolution, such as arbitration, if mediation fails.
• Litigation: If parties cannot agree during mediation, they might decide to proceed to court. In court, decisions will be made by a judge or jury, and the outcome may not be as satisfactory to either party as a negotiated solution.

SCHEDULE A CONSULTATION