Mediation has a great success record in Texas, which is one of the reasons most courts require mediation before trial. There is no question that a day of mediation can be expensive. A day of mediation, however, is likely to cost far less than a trial to decide the same issues. If both attorneys are settlement-minded, offers of settlement are almost always exchanged before mediation is conducted, and it is only when efforts have not resulted in an agreement that mediation may be what is needed to bring the case to closure.
There are many reasons why a mediator may be able to bring the parties to a settlement when their lawyers’ efforts have been unsuccessful. Sometimes, simply devoting the day to this attempt is enough to get everyone to focus at the level required to reach a settlement. In other cases, the attorneys and the parties may ask the mediator for his or her opinion about particular issues that have been a stumbling block, and the mediator may be able to get the parties to see the issues in a different light and focus on the possible weaknesses of their case.
The product of a successful mediation is a resolution of the case made by the people who know and understand it best: the parties, rather than a judge forced by the constraints of an overcrowded docket to limit the time available to present testimony and arguments and to render a decision. Mediation is often the parties’ “last best chance” to have significant and real influence on the outcome of the case.
Houston attorney Brenda D. Keen has practiced family law since 1975. She also practices mediation and collaborative law and is currently listed in The Best Lawyers in America.