Updated: Dec 5, 2022
01. Privacy & Confidentiality
You may have already read on our Mediation Page about the layers of
confidentiality associated with the mediation process. When you choose to have a hearing or final trial rather than to mediate your disputes, you may
be opening the door of your private life in ways you did not intend or are not prepared for. You should expect that your dirty laundry or past transgressions will be aired not only to the witnesses both parties bring to Court to testify, but also to the public at large.
In Texas, there is a policy that Courts are open to the public. Pre-pandemic, this meant that anyone on any given day would have the right to attend court proceedings anywhere in the State. Beginning shortly after the shutdown in March of 2020, many Courts began conducting hearings using internet-based conferencing apps (like Zoom, Microsoft Teams), and broadcasting proceedings online, often on YouTube. Beware: your legal proceeding may be broadcast online for all to see.
As I have addressed elsewhere on the website, settlement offers exchanged within the mediation process are confidential from the Courthouse and cannot be used against you later. This promotes settlement because it allows you to be more flexible with your positions in mediation, positions that you may not otherwise hold when you are fighting it out in court and a judge or jury is deciding your matter.
02. A Cost-Effective Solution
Resolving your case at mediation can result in significant financial savings overall. For a quick and dirty estimate of how much it costs to show up in Court with your attorney: multiply your attorney’s hourly rate times 10 hours; multiply your attorney’s legal assistant and/or associate’s hourly rate times 10; and then multiply that times the number of days your matter is anticipated to be heard in Court. It adds up in a flash, and this does not even consider the costs of preparation.
The deadlines associated with being prepared for a contested hearing or final trial also come with a considerable cost, too. In almost every imaginable scenario, adequately preparing for a contested hearing or final trial will run in the thousands of dollars.
This is not to say that mediation is cheap or that we don’t prepare for mediation—quite the contrary. An effective mediation also requires considerable preparation and legal research. The mediation itself will be conducted over the course of at least a day, which your attorney will be on the clock for. There is also the expense of the mediator, which is typically split evenly between the parties and required to be paid at the conclusion of mediation.
03. Solutions that Work for You
Every family has a unique set of circumstances that must be addressed as part of a
comprehensive resolution to a family law matter. The black-and-white text of the Family Code, which is what the Court will rely on when deciding what to do with your case, only goes so far. You may feel that application of some of the predominantly used terms is not best for your particular matter.
Mediation is a venue where, even as opponents, you can craft something you can both live with, that makes sense to both of you, and that feels fair-ish to both of you. (Use of the word, “fair,” is typically an avoided 4-letter word in family law.)
04. Eliminating Risk
This may surprise you, but judges are human just like you and me. They have good days and bad ones. They have personal histories and preconceived notions like we all do. They do their best to apply the law and decide issues in a manner that is “fair and equitable” to divorcing parties and “in the best interest of children” when custody matters are at stake.
Beyond making mistakes as humans, we all sometimes do things that surprise ourselves. Judges are the same way—they may make a decision one way on an issue with a particular family, and turn around and decide the same issue in a similarly situated family differently the next day. This does not mean judges are bad. They are doing their best. But just as you may feel certain about why you should prevail, the other side feels they should prevail just as strongly and there is always the chance that you may not come out on top.
By resolving your matter at mediation, you have a say in what happens. You may not (and likely will not) like everything about your Mediated Settlement Agreement, but you will be eliminating the risk of things turning out in more unexpected or unsatisfactory ways.
In Closing…You have no idea how things will shake out when you ask a judge or jury to decide your family law matter. Even the very best and most expensive attorneys have losses. Take every opportunity, within reason, to resolve your matter without leaving it up to someone else. The benefits of resolving your family law matter in mediation very likely outweigh the risk and costs—financial and otherwise—associated with bringing your matter to the Courthouse for resolution.