Q: What is mediation and how can it help?
A: When two parties have a disagreement, the last thing they usually want to hear is what the other side has to say, or worse yet, what their lawyer has to say. Mediation involves the use of a third party who facilitates productive settlement discussions when parties are unable to do so on their own. Usually, a lawsuit is pending, but mediation can also occur prior to suit being filed.
Mediation can be helpful to resolve disputes because it puts control of the outcome in the hands of the parties. In a lawsuit, the judge or jury listens to both sides of the argument through witness and documents admitted into evidence. The parties are taking the chance that the judge or jury will agree with them and reach the conclusion they want. This is a great risk because a party can spend all the time, effort and expense of trial and lose. In a mediation, the parties can reach an agreement and leave the mediation knowing what the outcome of their case will be.
Q: How is a mediator selected?
A: A mediator may be selected by the agreement of the parties. Usually the attorneys know who the mediators are in the area and can mutually decide upon a mediator. If the parties cannot agree, the judge can appoint a mediator.
Q: Who pays for mediation?
A: Usually, the parties split the cost of the mediator. If there are multiple parties, the mediator may split the cost between parties that are somehow aligned or simply by the number of parties involved.
Q: Is the mediation process confidential?
A: With only a couple of exceptions, the mediation process is confidential. All parties have a duty to report child abuse, even if it is first learned in mediation. Also, any threats of imminent violence will be reported to proper authorities. Otherwise, the mediation process is confidential. This means that neither party can question the other party at trial about offers made during a mediation session. This also means that neither party may call the mediator as a witness. The mediator will use discretion when sharing information between the parties during the mediation process. If at any time a party would like the mediator to know something particular, but does not want that information shared with the other side, they need to make sure the mediator is aware of their request.
Q: How is the mediation conducted?
A: A mediator will usually ask both sides to prepare a statement of their position and deliver that to the mediator ahead of the mediation. The mediator will review the statement and any supporting documents ahead of time. This helps speed along the process and get the mediator familiar with the dispute. On the scheduled day for mediation all of the parties will usually meet in a joint session with the mediator to review the process and allow for any questions the parties may have of the mediator. Sometimes the parties or their attorneys may give brief opening remarks as well.
After opening remarks, the parties will each go to separate rooms. The mediator will start in one room and begin gathering information and settlement offers. The mediator will then go to the other room to gather more information and possible counter-offers. The first meeting in each room may take a long time. Eventually the visits to each room will be shorter as the issues get narrowed down. The mediator will work between the rooms throughout the day in an attempt to see where the parties can reach common ground. Hopefully, by the end of the day all issues can be resolved by agreement.
Q: What happens when the mediation is over?
A: If the parties reach an agreement, the agreement will be written and signed by the parties and their attorneys. Prior to signing a mediated settlement agreement everyone needs to realize that the agreement is not revocable and will be enforced by the court. If a settlement is not reached, the mediator will simply inform the court that the parties attempted mediation but were unable to settle the case. The court is not made aware of any of the offers, counter-offers or anything else presented during the mediation process.
Q: What are the residence requirements for divorce?
A: A party must be a resident of the State of Texas the for six months and a resident of the county for the preceding 90 days in order to file a divorce case in a particular county.
Q: How fast can a divorce occur?
A: The Court cannot enter a final order in a divorce case until 60 days from the date the divorce petition is filed. There are some exceptions that allow the court to waive this waiting period.
Q: Does someone have to be at fault to seek a divorce?
A: No, in Texas the parties can divorce on a “no fault” ground.
Q: Is Texas a community property state?
A: Yes. All property acquired during the marriage is presumed to be community property. If one party claims that property is their separate property then they have the burden to prove the property is their separate property in court. The court has the power to divide community property during the divorce.
Q: At what age can a child choose to live with a parent?
A: The child does not have the right to choose which parent to live with. Texas law provides that the court shall interview in chambers a child of a certain age, and may interview in chambers younger children, to determine the child's wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child's primary residence. The court must still decide what is in the child’s best interest.