If your divorce case has contested issues, you will likely participate in mediation at some point during the litigation. In fact, Travis County courts require family law litigants to mediate before trial if the trial is expected to last more than three hours. Below are some common questions about the mediation process and my accompanying answers.

What is mediation?

 Mediation is a process in which a neutral third party—the mediator—assists the parties to the litigation in reaching a negotiated settlement. The end product is an irrevocable mediated settlement agreement (MSA) that is binding on both parties. The terms of the MSA will be incorporated into the final divorce decree and signed by the judge.

In defining what mediation is, it is important to also be clear about it is not. In mediation, the parties are in control of the process. If you want to walk out, you can. If you want to reject the other party’s settlement proposal and have your day in court, you can. Nobody—not your lawyer, the opposing party, or the mediator—can force you to settle your case. The mediator does not function as a judge and “decide” your case. Rather, the mediator provides his/her best judgment about the likely outcome of your case at trial and attempts to facilitate a resolution. The advantages of mediation are that it gives the parties control over the outcome of their case (rather than a judge or jury) and avoids the cost of trial, which can be substantial.

When does mediation happen?

Anytime before trial. You can even mediate before you file your case. Typically, however, it occurs after the case has been filed and the parties have conducted discovery.

What happens at mediation?

Before the mediation, the parties’ attorneys will select a mediator, who is typically a retired judge, retired lawyer, or seasoned Austin lawyer who also mediates cases. The parties’ lawyers have to mutually agree on the mediator. If they can’t agree, then the judge will appoint one.

The mediation will take place at the mediator’s office or the office of a lawyer for one of the parties. Each party will be situated in a separate conference room with his/her lawyer. Initially, the mediator will meet separately with each party and provide an overview of how the process will unfold. One party will make an opening settlement proposal—generally a proposal that approximates the party’s best day in court—that the mediator will present to the opposing party in the other room. This negotiating process will continue, with the mediator shuttling back and forth between conference rooms with proposals and counterproposals, until a final settlement is reached. As part of this process, the mediator will explain the merits of each settlement offer in an effort to promote settlement. If the parties cannot reach an agreement, then the mediation will terminate with no settlement.

Mediations are scheduled for a half-day (four hours) or a full day (eight hours). Sometimes an eight hour session can extend longer and stretch into the night if the parties are willing to keep negotiating.

How much does mediation cost?

It depends on the mediator and whether you elect to do a half-day or full day session. If your case is simple, then a half-day session might be appropriate. In my experience, it is difficult to settle a case in four hours. There simply isn’t enough time for a meaningful negotiation. Unless agreed to otherwise before the mediation or as part of the negotiated settlement terms, the parties split the cost of the mediator 50-50. In Austin, Texas, a half-day session for a family law case will usually cost around $500 per side; a full day session will cost between $1000 and $1500 per side. This cost reflects only the cost of the mediator and can vary depending on which mediator you use. Rates in Williamson and Hays Counties are generally lower than in Travis County. You also have to consider the cost of paying your lawyer. For example, if your lawyer is billing out at $300/hour, then you’ll rack up $2,400 in attorney’s fees for the time your lawyer spends at the mediation and additional time spent preparing for the session. This is considerably less than you will spend going to trial, however.

I don’t like the settlement I agreed to; can I back out?

The answer to this question is almost always no. I often receive calls from potential clients after they settled their case at mediation and decided, after the fact, that they didn’t like the result. Invariably, they claim they were “pressured” by their lawyer. Let me be clear, absent very specific and rare circumstances (like fraud), there are no “do overs” after you’ve signed an MSA . You have to live with what you agreed to. An MSA must be signed by both parties. If you’re not absolutely comfortable with the terms of the MSA, then don’t sign it. If you feel pressured by your lawyer to settle at mediation on terms you don’t like, then walk out of the mediation and fire your lawyer. You are the client and it is your prerogative to decide whether or not to settle your case and on what terms.

About the Author
Ben Carrasco is a highly skilled family law attorney based in Austin, Texas, known for his extensive expertise in family law and business litigation. While his primary focus is family law, Ben brings a wealth of experience in litigating diverse business disputes, ranging from breach of contract and collections to business torts, fraud, and real estate matters. In his family law practice, Ben navigates all aspects of the field, including divorce, child custody, support, property division, and more, offering clients expert guidance throughout the litigation process. His legal journey began in complex commercial litigation, initially with a global law firm and later with a prominent Austin-based firm. However, driven by a desire to make a direct impact on people's lives and embrace the human element of the law, Ben transitioned to family law, a decision that has proven to be deeply rewarding. A proud Austin native with roots in California, Ben completed his undergraduate studies at the University of California, Berkeley, before earning his law degree at Stanford Law School, where he excelled in legal writing and served as an associate editor of the Stanford Law and Policy Review.