Divorcing spouses in Texas are encouraged to use mediation as a means of settling their disputes. However, state law does not require spouses to mediate unless a judge orders them to do so. In an effort to facilitate settlement of contested divorces, may counties have established local rules that require mediation before the final hearing. The consequences, if any, for refusing to mediate depend on the type of divorce and local rules of the county where the case has been filed.
Mediation is a method of alternative dispute resolution that can help parties reach a settlement with the help of a neutral third party instead of asking a judge to decide how to divide the property and provide for the children. In a divorce case, the spouses may voluntarily arrange mediation or the court may issue an order. In either situation, the mediator attempts to help the parties work out solutions to parent-child and property division issues.
Mediation is not required in an uncontested divorce. If you and your husband can reach an agreement without the help of a third party, prepare a final decree of divorce and ask him to sign it. The decree must include the specifics of property division and, if you have children together, provisions for child support, conservatorship, insurance and visitation. If you both sign the decree, you may submit it to the court on or after the 61st day after filing for divorce and ask the judge to sign it.
Local Rules for Contested Divorces
In the Texas counties that require divorcing parties to attend mediation before the final hearing, a party who objects to mediation must file a motion within 10 days of receiving notice. If your husband fails to file an objection within that time and does not attend mediation, the case will be placed at the end of the docket on the date of final hearing. Unlike some states, Texas does not impose mandatory fines or disciplinary sanctions for failing to attend mediation. However, the judge may require the uncooperative spouse to pay the other spouse's mediation fees or attorney's fees.
Judges may specifically order mediation for certain cases, whether or not a local rule might also apply. This situation may arise as late as the day of the final trial in counties that have mediators available in the courthouse. In those situations, the judge may announce she will hear several brief cases while the parties in the other cases meet with mediators to try to settle their disputes. If your husband objects, he may discuss his objections with the judge. If the judge overrules his objections, he will be expected to meet with the mediator but the mediator cannot force him to engage in settlement discussions or report back to the judge about his failure to cooperate.
Convincing the Other Party to Try Mediation
If your husband is not familiar with the mediation process, he may be concerned that the mediator will force a settlement or will side with you. Other objections your spouse may have to mediation may include not wanting the divorce, feeling further discussion is futile, wanting his day in court, or not being able to afford mediation. If your county has a dispute resolution center that offers free mediation to divorcing couples, you may ask them to send your husband a brochure about their services or contact him by telephone to discuss the process. You may also let him know that mediation takes less time, is less expensive than a trial and, most importantly, it gives the two of you the opportunity to hash out the various issues that will affect both of you after the divorce.