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Pre-Litigation Mediation

This article was written by Hance Law Group principal Larry Hance.

Texas is sometimes a state that marches to its own beat, and that’s certainly the case with mediation. Texas came into mediation fairly late in the game, and it was an option in civil cases before it was adopted for family law. As a result, the most common kind of mediation used in family law is a civil litigation model of mediation. In those cases, the husband and wife, along with their lawyers, come to the mediator’s office, sit in separate rooms for the duration of the mediation session, and the mediator goes back and forth – and ideally, by the end of the session, they’ve agreed on a settlement which can then be filed in court to finalize the divorce. This is normally done during litigation, as opposed to prior to litigation.

But there’s another type of mediation that, while not so familiar to Texans, is more the norm for mediations in other states. It’s called pre-litigation mediation, and it typically involves a mediator who meets with the divorcing parties, together, in a series of short sessions to work out a settlement.

We offer pre-litigation mediation as an alternative dispute resolution for divorce, and while it has some similarities to collaborative divorce, there are some key differences that couples should be mindful of in weighing their divorce options.

One of the most important facets of pre-litigation mediation is the role of the mediator. The mediator acts as a true neutral in the case – it’s a conflict of interest for the mediator to act as the legal representative for either of the parties should they opt to go to court, or even to divorce collaboratively. And during the mediation process, the mediator is always neutral, and cannot give legal advice to the parties. The mediator is focused on getting the couple to a resolution, but can’t act as a lawyer for either party – so it’s in the best interest of anyone using mediation to have a lawyer, at the very least, look over the decree prior to formally agreeing to it.

Though some pre-litigation mediations are fairly clear cut, I do advise a number of couples to utilize the experts I’d suggest for collaborative divorces: a mental health professional to help with communication, a child specialist for cases involving children, and a financial professional to help with asset allocation and any necessary valuations. They’re extremely helpful in bringing focus to the mediation, as well as providing expertise on the issues that are typically most difficult to reconcile.

I set the tone for pre-litigation mediations in the same way that I frame collaborative divorces. I begin by asking the parties about their interests and goals, and I remind them of those when negotiations bog down.

I’ve found that mediation is best for fairly cooperative couples. If it’s an acrimonious situation, it can be challenging to work out a settlement in a series of mediation sessions, even if the couple expresses initial commitment to the process. There is the danger of one party feeling like the mediator is siding with the other party, and if there’s considerable tension between the parties going into the mediation, that feeling can be difficult to overcome no matter how prudent the mediator is in his or her dealings with the parties.

When it works well, it’s more streamlined and less expensive than other types of divorce processes. For couples who like what collaborative divorce offers, but want another cost-conscious option to weigh, pre-litigation mediation is a route worth exploring.