There are many factors that will determine if your case is decided by a judge or jury, and because of this, it’s impossible to say definitively “Yes” or “No”. However, the truth is that the vast majority of divorce and Family Law cases are decided outside of the courtroom. Trial, and all the procedures and elements leading up to the trial can be costly and the prospect of airing out personal family issues in a public forum is often enough to encourage people to find a resolution outside of court. In Travis County, parties are required to make a good-faith effort to mediate their case before setting a final trial. Travis. Co. Local R. 13.1 (Another reason why knowing the correct county to file is important.)
Another reason why parties often find ways to settle without a trial is length of time it takes. Here’s just a short list of things that occur before a final trial ever occurs:
As mentioned above, when you take your case to trial a judge decides what happens to the marital property, who gets to make what decisions for the child, and who gets possession of the child on what days. Mediation is the opportunity for you and your spouse to decide what happens to your property and family. This is one of the main reasons that the vast majority of Family Law cases settle in mediation.
Typically, all parties and their attorneys meet at a neutral location, which is often the mediator’s office. Family Law mediators are attorneys as well and their only role is to help the parties facilitate an agreement. Typically, each party will be in a separate room with their attorney and the mediator goes between the rooms delivering offers & counter-offers between the parties as well as providing guidance and insight to help bring the parties closer to an agreement. It’s not uncommon for first offers to be considered way out in left field. In fact, both sides often feel this way. The attorney’s job, and the mediator’s job, is to help the parties find common ground throughout the day to slowly whittle down the disputed issues. Ultimately, the goal is for the parties to leave mediation with a Mediated Settlement Agreement (“MSA”). Once the parties sign an MSA, whatever issues resolved or terms spelled out in the MSA are essentially locked in place as if a judge ordered it. There are a few exceptions, but the point of mediation is to resolve permanently, not “table” issues for a later day. Your ability to change your mind after mediation is almost zero, which is another reason why having the right attorney in the room with you is important.
Because you have a say in how your Family Law case is resolved. It’s just that simple. If you want a “decider” then a judge will gladly fill that role. If you want to have input on how your property is divided, or how the possession schedule for your children is decided, then mediation is right for you.
Mediators typically charge an hourly rate like other attorneys. The parties pay their attorney’s regular hourly rate and split the mediator’s hourly rate. The cost depends on how long the mediation lasts.
Ultimately, not reaching an agreement could mean you’ve decided to have your case decided in court. However, it’s not A or B and often parties attempt mediation several times before taking an issue to court. It’s important that you have an attorney who understands your case, is prepared for mediation, and who does take a deal simply to avoid going to trial.
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