Can My Spouse and I Hire a Mediator Together?

When going through divorce, spouses often look for alternative ways to settle their case outside of court. The most popular way to achieve this is through mediation. Many individuals may wonder, “Can my spouse and I hire a mediator together?” Before answering this question, there are a few important things to know.

What is mediation?

Mediation is an alternative dispute resolution method facilitated by a mediator. Mediation is when two parties are placed in separate rooms. The mediator will go back and forth between the parties to help reach an agreement. In mediation for a divorce case, the parties will discuss the division of property, and if there are children involved child – conservatorship, possession and access, child support and insurance.

A mediator is a neutral third party who helps individuals reach a resolution during their lawsuit. It’s important to know that a mediator does not represent one party or their issues. Though mediators are often attorneys, a mediator remains impartial to try and facilitate a settlement. A mediator’s job is to walk the parties through the process of settlement negotiations and try to help them come to an agreement. Unlike a mediator, an attorney represents the interest of one party. Think of an attorney as your personal advocate. An attorney can speak on your behalf and fight for you. We will discuss these differences more at length.

If parties are successful in reaching an agreement in mediation, they will sign a Mediated Settlement Agreement often referred to as an MSA. The MSA will lay out the terms of the agreement. Once signed by the parties and their attorneys, the MSA becomes final, binding and irrevocable. That means no one can change their mind and back out of the agreement once it has been locked in with signatures.

Why is family law mediation popular?

Family law cases are often difficult as they center around the things people love most – their children, their assets, and their money. A complex divorce could cost thousands, so often couples look for alternative ways to resolve their case without court interference.

Mediation has gained popularity due to its cost-effective manner. Rather than spending thousands of dollars in court litigating, couples may find that mediation is much less time consuming. Mediations typically last anywhere from four to eight hours, though this could vary depending on the circumstances.

Another reason couples seek out mediation is due to the availability mediators have over the court. Parties and their attorneys can schedule mediation once they agree upon a mediator, a date, and a time slot. In court, you never know what the Judge has on his or her docket for the day. There have been many instances where parties show up to a hearing and the Court has no availability to see them, despite being on the Court’s calendar. That simply does not happen with mediation as the mediator is pre-reserved by the parties when they make the appointment.

Mediator v. Attorney

It is important to establish the difference between a mediator and an attorney. While many attorneys are mediators, you must know the distinctions between your personal attorney and an attorney serving in the role of a mediator.

The biggest difference in an attorney and mediator is that a mediator does not and cannot provide you with legal advice. A mediator cannot tell a party what their legal rights are or what course of action they should take. If an individual asks a mediator, “What should I do?” a mediator cannot answer.

An attorney hired by a party, however, can. An attorney’s job is to advocate for their client and provide advice on the law. An attorney can tell a client of the risks and rewards of settling their case or advise them if it’s best to proceed with trial.

A mediator is neutral which means they cannot take a side. A mediator does not advocate for either party in the mediation but rather aids the parties in reaching an agreement. Attorneys advocate. The attorney’s role is to protect their client’s interest and fight for the best possible outcome that suits their client’s needs.

At the end of the day, neither the mediator nor the attorney can decide what is best for a client. Ultimately, the client makes the final decision to settle their case in mediation or proceed with trial. It’s important to know that if your spouse does not want to settle, there is nothing the mediator can do to force a settlement. Settlement is at the will of a client.

Can my spouse and I hire the same Mediator?

The short answer is yes - you and your spouse must hire the same mediator. The mediator works with both individuals to try and help everyone reach an agreement. Two parties can’t have two separate mediators – one mediator works with two parties.

Family law mediators are not only well trained in mediation and negotiation skills, but they also have extensive knowledge of the Texas Family Code. A mediator’s job is to remain unbiased and neutral so that common ground can be found. The mediator will be able to hear both spouses’ stories. While they are not the ultimate factfinder, they can guide a party based on their knowledge of the Texas Family Code and their personal experience in practice and with the court.

A good family law mediator will be a current or former practicing family law attorney in the area. They will have experience in the court where your case is being heard and be able to use real life examples to help facilitate an agreement.

Hiring the same mediator can be a cost-effective solution to divorce, as long as both parties understand the mediator’s neutral role. While a mediator can facilitate an agreement, they cannot provide the personalized legal advice or advocacy that an attorney can.