Most of the Harris County Family law courts now require mediation be completed before a final trial on the merits. The general exceptions to this are if there has been domestic abuse, or if an attorney files a motion and schedules a hearing to convince the judge that this particular case is not appropriate for mediation.
Therefore, it becomes quite important as to the selection of the mediator for a given case. Just as attorneys vary in personal styles, degree of experience, hourly rates, facility in dealing with highly contested custody cases, etc., so do mediators. Some mediators do not maintain any type of private law practice but only concentrate on their area of alternative dispute resolution. Others strive to fit mediations into an otherwise hectic law practice.
It is important for the attorney in a contested case to consider whether the particular facts center upon the testimony of fact witnesses or more upon business and accounting records. One mediator may be quite gifted in analyzing the personalities of the parties and what appears to be their motivations, goals, likely shortcomings and strengths at trial. Another mediator may be more oriented to reviewing the documentary evidence and putting assets and liabilities upon an Excel spreadsheet to facilitate a proposed division of property.
Some mediators are quite willing to be proactive and assess a given client’s likelihood of success or failure with respect to certain issues at trial and communicate that quite openly to the client. Other mediators may view their role more akin to that of a Henry Kissinger and shuttle diplomacy whereby they just carry offers and counter-offers back and forth between the two sides. Some clients may find an aggressive mediator quite distasteful, whereas other clients may view a more passive mediator as a waste of time because that mediator is only functioning as a messenger.
The likelihood of achieving an equitable settlement at mediation depends upon many factors but the selection of the mediator may well be a deciding factor.
