Norma Levine Trusch has been a practicing family law mediator since 1992. The role of the mediator is to assist both parties in identifying each of their interests, engage in respectful and meaningful negotiations, and craft an agreement that supports each client’s interests and needs.
What is Mediation?
Mediation is a confidential negotiation assisted by a trained neutral, the mediator, whose sole goal is to assist the parties in reaching a settlement of a dispute. The Rules of Mediation define mediation as “a process under which an impartial person, the mediator, facilitates communication between the parties to promote reconciliation, settlement or understanding among them. The mediator may suggest ways of resolving the dispute, but may not impose his own judgment on the issues for that of the parties”.
Mediation is not a winner-take-all approach. It involves compromise and enables the parties to negotiate a settlement together based on their own needs. Because the couple has the ultimate authority over the terms of their agreement, they often work out a realistic, respectful and fair agreement through the mediation process.
Pure Form Mediation
Pure Form Mediation usually does not involve the presence of attorneys, although they can be involved on a consultative basis either during or between mediation sessions. The mediator meets privately over a period of weeks or months for 1-hour to 3-hour long sessions with the parties, who may or may not be represented by counsel. Pure Form Mediation can be court-annexed or private, and often occurs very early in the divorce or modification process, sometimes even before any attorneys have been retained. Although this form is not the prevalent form in Texas, it is increasingly being used, especially when utilized to prevent impasse in the collaborative law process.
Caucus Method (Moderated Settlement Conference Method)
The Caucus Method has also been called the Moderated Settlement Conference Method, almost always is conducted with the attorneys being present, and usually occurs late in the litigation process, frequently on the eve of trial. Some mediators conduct “marathon” caucus mediations that extend into the wee hours of the morning. Caucus mediations of complex matters are often conducted over a period of days.
The mediator’s role is to remain neutral during the mediation process. The mediator cannot give advice or act as a lawyer to either party. The mediator fosters a flexible, open and confidential environment in which the couple can feel safe to exchange information as well as their needs with each other and negotiate a resolution that supports each individual and their family.
Whatever form is used, the mediation process is private. The mediator is precluded by statute from being a witness in the family law matter if it should go to court, and his records are not subject to subpoena nor may they be used as evidence in trial. Confidential information disclosed to the mediator may not be divulged. Parties are also protected from being served with process or subpoena at or near the site of the mediation.
Mediation is voluntary. If either spouse or the mediator wants to end the process, they may withdraw from mediation at any time.
What is the difference between Mediation and Collaborative Law?
In Mediation, there is one professional who assists the parties in their dispute. The mediator must remain neutral during the negotiations and cannot offer legal advice to, or advocate for either party. If there are attorneys for the parties, they may not be present for the mediation sessions. If the mediation process does not result in a full settlement, the parties are able to go to court with their hired lawyers for a resolution.
In Collaborative Family Law the disputing parties are assisted in their negotiations by their respective lawyers, and other neutral allied professionals. Collaborative lawyers take a non-adversarial approach to handling the divorce or family law matter. By recognizing and building on the couples own needs and interests, collaborative lawyers facilitate clients in finding livable legal solutions that reflect the needs of all parties involved and minimize the financial and emotional disruption to the family. The collaborative agreement disqualifies any of the team members from taking the dispute to court. If the couple decides to take the dispute to court, they must find new representation.
Advantages of Mediation
The mediation process allows couples to be in control of their own divorce. Couples who go through the mediation process are more likely to be satisfied with the results of their settlement because they work together to negotiate the terms of the agreement in a private setting.
Mediation allows the couple to get through the divorce with less conflict and gives them tools in having a healthy parenting relationship if children are involved.
Because the couple is working together in the mediation sessions, sharing information with one another, it often takes less time and less money to negotiate a settlement. This is key in helping couple move on with their lives after the divorce.