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Will my Family Law case go to a trial?
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.)
What is the process of going to trial?
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:
1) Discovery -- This is the process by which the parties "discover" all the relevant facts and information of the case. Discovery can be formal or informal, but if your case is headed to trial you will most likely deal with a variety of formal discovery. This might include having to answer written questions under oath or sit answering questions under oath for hours in a deposition. Each side must produce documents such as pay stubs, tax returns, bank statements, credit card receipts, and even notebooks and diaries depending on what is going to be argued in Court. Discovery could also entail subpoenas to your friends, family, coworkers, neighbors, and even alleged paramours to answer questions under oath. Discovery can be a long, drawn out process if either side feels that the other is not forthcoming with all the facts, possibly requiring short hearings on motions from either side.
2) Experts & Expert Reports -- If there is a dispute regarding the value of a house, business, or other martial assets, if there's an issue regarding someone’s mental or physical health, or if you need a third party to testify about the best interest of the children, you will usually need to hire an expert. These experts will need to conduct an investigation to produce an expert report on the issue they are being relied upon. This takes time and resources.
3) Pretrial Motions & Hearings -- The fact that your case might be headed for a final trial does not mean you won't be inside a courtroom before the final trial date. As mentioned above, there could be a variety of shorter hearings to resolve issues along the way, requiring the Court to issue Temporary Orders before the final trial.
While most cases settle before going to trial, having an attorney who is prepared and willing to argue your case before a judge or jury is important.
What is Mediation?
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.
How does Mediation work?
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 roll 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 mediators 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.
Why is Mediation a good option?
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.
What does it cost?
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.
What if we don't reach an agreement at Mediation?
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.