The Mediation Process

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by | Apr 15, 2021

Christina Jimenez and Joshua Floyd from The Jimenez Law Firm, P.C. Explain and Review Family Law Mediation. Mediation is a process whereby the parties and their attorneys meet with a neutral mediator who has been trained in law and in the art of negotiating a compromise and settlement agreement out of the parties.

To schedule a consultation with a lawyer at our Flower Mound, Lewisville or Odessa offices call us at (214) 513-0125.

The Jimenez Law Firm, P.C. specializes in Family Law and Criminal Defense. Our offices are located in Flower Mound, Lewisville, and Odessa, Texas and we provide representation to residents throughout North Texas and West Texas who are struggling through a wide range of legal dilemmas.

Many legal situations can be resolved through negotiation and mediation. When this communication breaks down, however, it is important to have an attorney on your side who has courtroom experience. We are not only skilled negotiators but accomplished trial litigators. In fact, we prepare for every case as if it would be decided in court. Clients appreciate our attention to detail and our thorough preparation.

We represent residents of the Dallas-Fort Worth Metroplex in communities such as Lewisville, Denton, Dallas, Fort Worth, Flower Mound, Westlake, Southlake, Frisco, Plano, Carrollton, Farmer’s Branch, Irving, Grapevine, Highland Village, Richardson and in residents of West Texas such as Odessa, Midland, Monahans, Andrews, Crane and Fort Stockton.

At 00:16 We are going to talk about mediation. Mediation is a settlement process where you and the other party can customize an agreement without going to court.

At 00:41 Let’s go over the process. First, we meet, and the parties go into separate rooms. Each party has a lawyer. Also, there is a mediator, who is a licensed professional and is also a lawyer. Their job is to listen to both sides and offer information. The mediator will go back and forth with both parties until the agreement is finished. 

At 01:17 At the end of a successful mediation, both parties sign a mediated settlement agreement, an MSA. MSA will be used throughout the video, and it is referring to this document. 

At 1:52 Let’s discuss when and why we go to mediation. Most cases go to mediation because it saves the clients money and then they don’t have to experience the emotional difficulties and cost of litigation. Litigation is expensive and is incredibly stressful. I advise clients to avoid court, especially if they have kids. 

At 02:17 In mediation, you can customize your agreement, but a judge may not allow that. Judges just look at the Family Law code. So, mediation involves people who know your case and are looking for the best agreement, but a judge will not have time with your case. So, mediation is almost always a better process. 

At 02:39 About 90-90% of our cases go to mediation. There are mediation fees and attorney fees. We know the cost of mediation, having lawyers at mediation, and then attorney fees are stressful. However, going to court is much more expensive and there are many unknowns, such as how a judge will rule. So, mediation is money well spent. 

At 03:12 I have clients who say that the other party will never agree to the terms in mediation, but I tell them we must try. Mediation is an investment of time and resources but almost all my clients go to mediation because it is a better option than going to court. 

At 04:06 Typically when we’re deciding whether or not to go to mediation, we have a strategic meeting with clients and we tell them that we think mediation is going to work and encourage them to think about it. Typically, the lawyers and opposing counsel will agree on a mediator. If we can’t agree on a mediator, then we have to go to court to have the judge appoint one. 

At 4:55 Typically we have a pre-mediation meeting with our clients. I want to add that there is a huge cost factor in mediation and court. Mediation may cost $5000 but it will cost $15,000 to try your case in court. So, we’re trying to settle 90% of our cases in mediation because it will save thousands of dollars. And from a gambling perspective if you have a 90% chance of saving $10,000 and a 10% chance of losing $5000 then the risk is worth it.

At 5:40 At the remediation meeting we go over the nuts and bolts of the process, of what we’re going to be requesting during mediation, and we want to use this time to make sure that we’re on the same page with what the client wants and what their goals are. It’s important to find out what they’re willing to give up on and what they want in return. Also, we need to make sure we have all our documents in line to establish our case. 

At 06:15 Also during the pre-mediation meeting, we’re going to talk about what our first offer is as well as what the bottom line is. Before the meeting, I also tell my clients to bring a draft copy of what we call a wish list. The wish list is helpful so that we can set reasonable expectations prior to walking into mediation. Sometimes I might get a wish list of 50 to 60 different items, and I will tell my client that many of the items are not realistic. I base what I think is realistic on my years of experience in court and mediation. To have a successful outcome, both sides will need to have some tradeoffs.

At 08:03 It’s also important to discuss what you’re not willing to give up. This should be one item that you’re willing to say that you don’t want to negotiate anymore if you don’t have that item go your way. So, the line is drawn and it’s important for the attorneys to know this when we’re starting off because if we try to figure this out during mediation it causes a lot of stress on both sides. 

At 09:06 To be prepared and incur less stress, I will type out my exhibit to my MSA and have that up and ready to go. This document is what I work from during the mediation so that I can make sure that we focus on getting the most important items for them. Also, it’s important to say that we may end up being willing to change that mediation based on what they’re willing to give because we didn’t anticipate what they would be willing to do. Part of the mediation process is trying to strategize and figure out what the other side will be willing to do and there is a lot of back and forth. 

At 09:44 There are some decisions that are just difficult to make during mediation and this is especially true about kids. So, the pre-mediation meeting gives our clients an opportunity to think about the things that are realistic and to possibly lower their expectations in other areas. That way, no one is blindsided by something on the day of mediation and unable to make clear decisions on topics that will affect their lives. 

At 10:22 When we’re talking to clients about difficult decisions, we need to look at the whole picture. For example, during a recent mediation, we discussed the terms of visitation for a young child. My client thought that the visitation wasn’t fair. I agreed with him, however, I also had to consider what we would get in a courtroom. And I knew that we would get a better outcome if we agreed to the terms in the mediation. This can be incredibly difficult to understand because they’re in the mindset that they’re not going to settle unless they get it. Clients need to remember that it will cost far less money and will be less emotionally taxing to settle things in mediation. And we know what the courts are going to do and so we are advising them in their best interests.

At 11:21 Again, we use the cost of litigation as part of our strategy on what to ask for and what to accept because court fees are remarkably high and the client may end up with the same terms offered in mediation, but now they have spent thousands of dollars more. We know the client may not like the terms, but it doesn’t make sense to continue to litigate and fight it out in court. 

At 12:07 Next, we need to talk about the mediated settlement agreement (MSA). The MSA you’re going to sign is enforceable and it’s irrevocable. You can’t change your mind once you sign on the dotted line. And so once again, we have that pre-mediation meeting so that you can think about things because once the MSA is in effect it cannot be changed later. 

At 13:10 There have been occasions when my client was very emotional and that’s understandable since we’re ending a marriage and there are kids involved. I’ve told the client, mediator, and opposing counsel that we need a day or so before we sign. I need to make sure that my client is in the right frame of mind before we execute this MSA. It doesn’t happen that often but it’s important enough for us to take a couple of days to think it over.

At 13:35 Again, we encourage everyone to use the mediation process because it’s going to save a lot of time and heartache. Also, it’s going to save a lot of the client’s money. 

At 14:14 Remember that you will have more say in the mediation than you will in court. Remember, that the judge is going to go by family code and will make decisions for you based on code and not based on what you want from the process. 

At 15:01 Hire a very good family lawyer. This will ensure that you get the clearest guidance possible and the best advice to do what is best for you and your family.