Facilitative Mediation in a Texas Divorce

If you’re facing a divorce but are deadlocked with your spouse on the terms – and definitely don’t want to end up in court – facilitative mediation might be for you. Some couples think we’ve been over and over this: what is mediation going to change, and if you’re in this camp you may be in for a surprise.

With an experienced Round Rock divorce attorney in your corner, facilitative mediation can make a world of difference –while ensuring that your financial and parental rights remain intact.

Facilitative Mediation

It can help to begin with a clearer understanding of what facilitative mediation is and what it isn’t. To begin, your mediator won’t be evaluating your case or guiding you toward a specific settlement. Instead, they – in their role as a neutral third party – will facilitate the conversation between both sides, which means you and your divorce attorney and your spouse and theirs.

During the facilitative mediation process, you and your spouse will control the terms discussed – those terms that remain unresolved in your divorce – and control how they are resolved. Your facilitative mediator’s focus is on helping you find a middle ground that allows resolutions, and in so doing, they provide the structure and agenda for your problem-solving discussion.

In other words, your facilitative mediator will manage the process, which allows you and your soon-to-be ex the space and the push to hammer out the terms that continue to plague you. When each spouse is committed to the process – and to keeping your divorce out of court – facilitative mediation can be highly effective.

The Mediation Environment

The mediation environment is far more relaxed and informal than the courtroom, which helps set the stage for more open negotiations – in contrast to the adversarial nature of a divorce trial. At mediation, you can take the time that you need, which may translate to multiple facilitative mediation sessions if your terms are particularly complex, contentious, or both.

While going to court tends to be intimidating, mediation is all about affording couples the opportunity to approach their unresolved divorce terms in an organized way and in a safe space that allows each party to be heard. And this environment can go a long way toward fostering effective negotiations.

The Facilitative Mediation Process

The most important aspect of every mediation process is gathering the facts and pinpointing what is in dispute. If you and your spouse have just one divorce term holding you back, you’ll use the facilitative mediation process to pin that matter down. If, instead, you haven’t resolved much at all, you’ll need to address each of the terms that you remain at odds about.

Sometimes, one divorce term will hinge on another, such as the division of marital property and alimony—and once you resolve one, the other may fall into place more easily. At other times, however, a few tweaks may help you round out the edges on each of your terms. Whatever your situation is in relation to your divorce terms is what you’ll bring to the mediation process.

The Relevant Facts

Generally, divorcing couples don’t head directly to mediation. You likely began by attempting to negotiate the terms of your divorce between yourselves – with the legal guidance of your respective divorce attorneys – and, along the way, you compiled the relevant facts that support each of your positions.

By the time you make your way to mediation, you have a good feel for where you’re at in terms of all the following:

Your marital financials
Where each of you stands on each of the unresolved terms
Your own divorce priorities
Any must haves that are guiding your negotiations

In other words, you won’t come to mediation with no clue about what’s going on. You’ve already done a lot of the hard work and have culled the information you need to make primary decisions about the division of your marital property, your child custody arrangements, child support, and alimony – as applicable.

A Note about Your Divorce Priorities

An excellent strategy for divorce mediation – or for resolving divorce terms in general – is determining what your divorce priorities are. Your skilled divorce attorney has the legal finesse and insight to help you figure out where you’re willing to bend a bit more and where you’re more inclined to stand firm, which can put you in a better position to negotiate.

The Introduction Session

Your facilitative mediation will begin with the introduction session, during which the mediator will explain the concept of mediation to you and explain their role in the process. This generally happens with both spouses in the same room, but if there is a good reason for splitting up at this stage, that can be arranged.

The Discussion Process

At mediation, discussions begin with the mediator going back and forth between the room you and your attorney are in and the room your divorcing spouse and their attorney are in. To begin, the mediator will establish each of your positions on each of the terms that remain unresolved.

This relates to what each of you would like the outcome to be, and you’ll both also discuss what your interests are in the matter, which means the factors that are guiding your positions.

Often, spouses’ interests overlap somewhat, and the overarching goal of mediation is building on these areas of common ground, which amounts to a form of splitting the difference.

The discussion process will go back and forth between you and your spouse—with the mediator taking any concessions or offers made by either of you back to the other—until you reach the resolutions that you’re able to reach. While your mediator won’t weigh in with their opinion, they will provide structured guidance that can help keep the process moving forward.

The Final Agreement

The resolutions you and your divorcing spouse are able to reach will be included in your final agreement, which your mediator will draw up. They will then witness each of you sign the mediated settlement agreement, and one of your attorneys will file it with the court for the judge handling your case to sign and order.

One of the many benefits of mediation is that it is only legally binding if you both sign off on it. If you and your spouse haven’t resolved each of the terms of your divorce after you’ve exhausted your ability to negotiate in mediation, you’ll need to go back to the drawing board, which may mean taking the matter to court.

When this happens, you face the cost of mediation, which is generally much more cost-effective than trial, on top of your court costs, which tend to be far higher. Even if you’re only able to resolve a term or two at mediation, however, it translates to fewer matters that require the court’s intervention, which most couples consider a good thing.

It’s important to do some soul-searching prior to mediation. If you are committed to the process and genuinely want to find a middle ground that you and your spouse can both agree to—and you believe your spouse feels the same way or have no reason to believe that your spouse doesn’t feel the same way—mediation is usually an excellent choice.

At this point, it’s important to note that if the stress of divorce has gotten to your spouse and if they are bound and determined to make it as difficult for both of you as they possibly can, mediation isn’t likely to bring them to their senses. In these cases, heading directly to court may be the best choice. Your dedicated divorce attorney can help you make the right choices for you.

The Pros and Cons of Mediation

Facilitative mediation has much to recommend it, but – as mentioned – there are some instances when court is a better option. Let’s look at the plus side of facilitative mediation by considering the following pros:

In general, mediation is significantly less time-consuming and less costly than going to trial.
Because divorce court records are a matter of public information, you won’t have much privacy if your divorce ends up in court. Mediation, on the other hand, is a private matter, which many couples value.
At mediation, you and your spouse continue to call the shots. If you go to court, however, the judge—who knows very little about you—will make decisions on your behalf that will have lasting consequences in your life. Most divorcing couples prefer to avoid this at all costs.
As noted, mediation isn’t legally binding, which means that you won’t be walking away with terms that you find absolutely unacceptable. If you can’t come to mutually acceptable decisions, you’ll leave mediation without terms.
Most people find mediation considerably less stressful than going to court, which is beneficial in and of itself.
Mediation lets both spouses know that it’s time to negotiate more effectively or turn matters over to the court, which can be very motivating to both sides.
Because your trusted attorney will be by your side throughout the mediation process, you have the peace of mind that comes from knowing that your rights are well protected and that you won’t blunder into a term that comes back to haunt you.

When it comes to the cons of mediation, they generally focus on prolonging the process. If either of you is not willing to budge on any of the terms and if this is more important to you than avoiding court, mediation may end up being another stop on your path toward trial. Not only will it delay the inevitable, but it will also add to the final cost.

If You Are Seeking a Fault-Based Divorce

The vast majority of divorces in Texas are based on insupportability – or irreconcilable differences – which means they are no fault. This is generally a less costly, speedier, and less contentious approach, and the matter of fault can still play a role in the resolution of your terms in some instances.

If, however, you are seeking a fault based divorce, which can be advantageous in highly specific instances, your case is not suitable for mediation and will be resolved in court.

If Domestic Violence Is Involved

If your divorce involves domestic violence, you are likely well aware that it tends to escalate during times of stress or when the victim attempts to leave. This means that mediation isn’t a viable option for you. The best way to protect yourself and your children throughout the divorce process is by working closely with your compassionate divorce attorney.

It’s important to note here that your case will almost certainly be resolved in court – where your safety can be better protected. When domestic violence is involved, you have options that include:

The court may grant you a divorce based on cruelty, which can directly affect your terms.
The court can waive the 60-day waiting period that affects other divorcing couples in the state, which can expedite your divorce.
The court can also issue protective orders that are designed to keep you and your children safe.

An Experienced Round Rock Divorce Attorney Is on Your Side

Brett Pritchard at The Law Office of Brett H. Pritchard is an accomplished Round Rock divorce attorney whose decades of experience inform every case he handles. He welcomes the opportunity to help you.

For more information about facilitative mediation and to learn more about what it could mean for you, please don’t hesitate to contact or call us at 254-781-4222 to schedule your free consultation today.