Tuesday, January 05, 2021

Preparation is the Key to a Successful Family Law Mediation

By Tony Mallers

If you’re like most people going through a divorce or child custody matter, you're looking for the fastest, most cost-efficient way to settle the case to get on with your life. Divorce and child custody cases are often the most stressful events outside of health issues that any person can face. Not only is your financial future at stake, but the effect on your children can be serious and enduring. Nearly all family law cases will be referred by the court to mediation before the case can go to trial. Mediation, therefore, is an opportunity to resolve the case out of court.

 

Planning Can Alleviate Stress

While settlement at mediation will often save time, stress, and legal fees, your outcome at mediation is dependent on the preparation undertaken by you and your attorney before the mediation even starts. You should approach preparation for a family law mediation seriously, as if it were the final trial. If a case settles at mediation, the parties usually sign a binding settlement agreement at the conclusion of the mediation. This is often a complicated legal document that is signed after several hours of sometimes stressful negotiation. It is critical that you have carefully considered your ultimate goals for your case -- what terms and conditions are most important, and what your final Divorce Decree or Child Custody Order will look like before you arrive at mediation. You should not wait until mediation starts before considering all the variables their their potential impact on your children and finances.

Mediation and Custody/Support Issues

In a divorce case with minor children, the child custody and support issues usually  covered at mediation are appointment of conservators (i.e. sole or joint conservatorship), appointment of primary custodial parent, geographical residence restrictions for the child, visitation, child support, medical and dental support, and apportionment of rights and duties between the parents. You must understand and have considered all the rights of a parent --  which may be awarded exclusively to one parent, independently to both parents, or exercised through joint agreement between the parents. Also, your attorney should give you the Texas Family Code provisions for the Standard Possession Order, including standard weekend periods of possession, holidays, and summer possession schedules. It is important to understand the rules of standard visitation before you arrive at mediation. You must have complete income information on your spouse for child support calculations, and information on the children’s medical and dental insurance, or at least what is available through either party’s employment or on the open market. It’s best to have a sample custody order prepared ahead of mediation containing all the normal terms and any additional item you want in the Order, so that you don’t forget an important term in the evening hours as you sit at mediation trying to draft a mediated settlement agreement.

 

Preparing for Property Division

The property division issues usually involve division of the parties’ marital residence, retirement plans, and any bank or brokerage accounts and items of personal property such as vehicles, home furnishings, etc. In considering how to divide property, you should make sure to have a firm handle on the following information prior to mediation:

  • current values for all community assets;
  • the nature and value of any separate property that is not subject to division in divorce;
  • the likely bonuses and benefits payable to each spouse arising from employment;
  • the fair value and equity in the marital homestead;
  • the community value of any retirement plans; and
  • the liabilities, including tax liability, owed by either or both spouses.

This can be accomplished before mediation through discovery requests, document subpoenas, depositions, inventory and appraisements filed by each party, and several other tools that you can discuss with your attorney. While it is true that discovery is an expensive part of litigation, nevertheless you should make every effort to formally or informally obtain the above information to be able to make intelligent decisions on property division.

Prior to mediation, you should have prepared spreadsheets showing potential division of assets and liabilities, and have given thought to the likely offers and counteroffers you will make or received at mediation. These spreadsheets are an invaluable method to show the percentage of values being awarded to each party. They can be revised as each offer comes back giving you an overall view of the fairness of the property division at a glance.

Your case may or may not settle at mediation, but through preparation and thinking about the case ahead of time, you put yourself in control of the process to the extent possible. It many cases, it’s better not to settle at mediation if it means a bad settlement.

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