Mediation is an effective process by which a neutral third party aids opposing parties in identifying and resolving their disputes. Family law parties are encouraged by the courts, and in some instances ordered by the courts, to mediate. Mediation is appropriate in almost any family law matter.
Mediation is usually successful. Mediations are most successful when the attorneys are prepared, the parties have reasonable expectations, the parties and attorneys have sufficient time for the mediation, and the parties and attorneys are creative in dealing with the disputes.
There are many types of family law cases, for example – divorces with property only, divorces with children and property, modifications of custody, modifications of visitation, modifications of child support, enforcement of child support, enforcement of medical support, and enforcement of visitation. Some of these cases are easier to settle than others. In my experience, cases with the highest settlement rate are modest sized property only cases.
If a divorce case has property only, often times, the attorneys and parties are able to get the range of dispute somewhere between a 50-50% property division and a 60-40% property division. Although the law in Texas is that the community property should be split in a just and right fashion, the inquiry normally starts at a 50-50% split.
The court has discretion to award a disproportionate split of the community estate. The most common factor that I see in mediations for a disproportionate split of the community estate is a disparity in earning power.
Although possible that the court would award more than 60% of the community estate to one spouse, it does not happen often. In the mediation world, we usually say that the range of property settlement in a divorce is between 50-50% and 60-40%.
Once we establish the range between 50-50% and 60-40%, we calculate the value of one percentage point. For instance, in a case in which the community estate has a net value of $1,000,000, each percentage point is valued at $10,000. In that case, the difference between a 50-50% split and a 60-40% split is $100,000.
For a net community estate with $100,000, however, each percentage point is worth $1,000. In a $100,000 case, the dispute between a 50-50% split and a 60-40% split is $10,000.
Generally, in Texas, the expense of the trial is the burden of the community estate. As such, the community estate “pie” decreases in size as attorneys’ fees are paid. A conservative range for a divorce final trial is $5,000 per side. Many times there is a quote of $25,000 per side to take a case to final trial. It can be more.
When the costs of trial are considered, it is common for the parties to factor in the time, cost, and stress of a trial. When they do so, they often decide to settle the case.
At the time of writing this article, my mediation success rate is over 90%. I have over a decade of courtroom experience in family law, guardianships, estate, and general litigation. I can mediate and arbitrate cases involving family law, guardianships, estate, and general litigation.
My goal is to listen, and to be fair and impartial. I believe that the main limitations on settlement are time and creativity. If we keep working at the case, odds are we will settle it.