Tom Carnes is a trained mediator and collaborative lawyer in addition to being an
experienced trial lawyer. This diverse experience provides skills and insight that
can only benefit the client no matter what the setting.
In Texas, mediation has become a way of life in almost all mediation context. Courts
have become challenged to keep up with their dockets. In the eyes of most Judges,
most family law cases should be settled rather than tried. It is the policy of most
courts to Order mediation prior to trial. More and more Courts are Ordering mediation
even as a condition precedent to a temporary orders hearing, except in an emergency.
So what does this mean for the family law client? It means one of two things. The
family law client can go into mediation convinced that it will not work, and ensure
that it does not, in fact, work. Alternatively, the client can approach mediation
with all of the seriousness of trial, and with a negotiating spirit, focusing on
each party's interests rather than 'winning' or posturing. If both clients approach
mediation in this matter, it will likely be successful.
So what is mediation? It is a formal negotiation with a neutral professional’s
assistance. Mediators have different styles, but they will often spend much of a
day-long with each side, independently. There may or may not be joint sessions with
the other party and his or her attorney.
At the end of the day, if the day is successful, you will leave mediation with a
mediated settlement agreement (“MSA”). The MSA may resolve some or all
issues present in the family law case. What is important to know and understand
that the MSA is final and binding – once agreed-to consent may not be revoked
accept under very narrow circumstances rarely present, such as fraud in the mediation
itself.
So why resolve cases through mediation? One reason is, of course, that you have
to go and you might as well go with an approach reasonably calculated to succeed. But
more than that, as with any voluntary agreement, an MSA gives the parties more flexibility
than does an Order coming from a contested hearing. Agreements are reached every
day in which the terms make good sense for both parties, but would not have been
terms that a court would have been free to Order under the Family Code. Who knows
better what is right for you, and your children, than you and your spouse, a judge?
Think again. Mediation often leads to outcomes that could not have been achieved
through a contested trial, and are acceptable to the parties themselves or they
presumably would not have agreed.