Mediation and Arbitration
The majority of family law cases are resolved via some form of alternative dispute resolution. Under Texas law, the parties to a family law matter may resort to mediation, arbitration, collaboration, or an informal settlement conference in an effort to resolve their issues amicably. These resolution techniques can result in a much quicker resolution of contested matters and are usually much less costly than a protracted legal battle.
Mediation – Mediation is a private, informal dispute resolution process in which a neutral third party called a mediator assists the parties in reaching an agreement. Mediators are usually attorneys. However, non-attorneys may act as mediators.
In most counties in Texas, family law matters must be mediated before a final hearing or trial date will be set. A party may at any time prior to the final mediation order file a written objection to the referral of a suit for dissolution of a marriage to mediation on the basis that one party has committed an act of family violence against another party. After an objection is filed, the suit may not be referred to mediation unless, on the request of the other party, a hearing is held and the court finds that the evidence does not support the objection. If the suit is referred to mediation, the court shall order appropriate measures be taken to ensure the physical and emotional safety of the party who filed the objection. The order shall provide that the parties not be required to have face-to-face contact and that the parties be placed in separate rooms during mediation.
The purpose of mediation is to open up a dialog between the parties with a goal toward resolution of their differences. Sometimes, especially in cases of domestic violence or if the parties simply refuse to communicate calmly, the mediation will take place in a caucus setting. A caucus means that the parties are placed in different rooms and the mediator goes back and forth between the rooms, essentially acting as a go-between in the negotiating process.
Sometimes, the parties are able to resolve all their issues during the mediation. If this occurs, the agreement of the parties will be reduced to writing by the mediator and the parties will sign it. The mediated agreement is a legally enforceable document by which both parties are bound.
If the parties are able to resolve some but not all of their issues, the mediator will reduce the terms upon which the parties agree to writing and the parties will sign the mediated agreement. A hearing will be held to resolve the remaining issues.
If the parties are unable to agree on anything, the mediator will have the parties sign a document which says that no issues were resolved and the case will be released for hearing. All issues will be presented to the court for consideration and a final ruling.
Arbitration – The parties to a family law matter may choose to have an arbitrator hear their case. An arbitrator is usually a judge whom the parties have chosen and agreed to pay to hear their case. Although an arbitration is procedurally very similar to a court hearing, it usually takes place in a private setting outside the courthouse.
Because arbitration usually takes place after the court has entered temporary orders and discovery has been completed, the parties must present a written agreement to the court indicating their intention to arbitrate. The written agreement must specify whether the arbitration is binding or non-binding. If the parties agree to binding arbitration, the arbitrator's decision is final and the judge will enter an order which reflects the arbitrator's decision. On the other hand, if either party is dissatisfied with the arbitrator's ruling, non-binding arbitration allows either or both parties to request a hearing before the court for final resolution of the issues.
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