Courts routinely order that the parties attempt to resolve their divorce by mediation prior to scheduling a contested final trial. One reason courts favor mediation is to help keep the judicial system functioning. The system would be broken if every case had to go to final trial. There aren’t enough judges and courtrooms to meet the demand.
Mediation is not arbitration. In mediation, the parties are not “handed” the answer by the mediator. Mediation only resolves the case if the parties both agree to the terms of the mediated settlement agreement.
Sometimes only some of the issues can be resolved in mediation, such as division of the community estate (i.e. how much property and debt each spouse will receive in the decree). Partial resolution helps “narrow” the issues for final trial. If children are involved and both parents want primary custody, then that may be the only issue requiring the court’s time. Narrowing the issues can cut the time needed to try a case in half. Judges appreciate that effort.
Mediation is not all about keeping the judicial system functioning. It also is about helping the parties feel better about the outcome. Mediation generally involves give-and-take and the parties are in control of deciding whether they can accept the terms of the agreement. While neither party tends to get everything they want, each party should get enough so that it’s worth compromising. At final trial, the parties are not in control. In a contested trial, each party risks all of their objectives. Each side pleads its case and the court “hands” the parties an answer. That answer may be better, worse, or about the same as what could have been achieved at mediation.
For questions about mediation and other issues in divorce, speak with a qualified divorce attorney.
Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm. The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.