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Mediation and Family Violence

Protection from Violence or Abuse

These questions address mediation when there has been family violence.

Mediation is a way for people to resolve legal disputes outside of court with help from a trained, neutral mediator. If people agree on a solution, the mediator will help make a written agreement that is binding and can be enforced in court. But, if there has been violence in the relationship, a person can object to mediation and ask for safety measures.

What is mediation?

Mediation is a process by which parties can settle their disputes with the assistance of a qualified mediator. The mediator helps the parties write an agreement if a settlement is reached.

Some courts in Texas require mediation in a divorce case. A court can order a case to mediation on its own motion or by agreement of both parties. Texas Family Code 6.602(a).

How do I request mediation?

  1. File a motion for mediation.
  2. File a proposed order on motion for referral for mediation.
  3. Give a copy of the motion and order to the attorney or the other party if not represented. 
  4. The Court will appoint a mediator, who will contact the attorneys or the parties, if not represented, to schedule mediation.

What can I do to avoid seeing my abuser?

Take the following steps to avoid seeing your abuser:

  1. At any time before a final mediation order, file an objection to referral to mediation based on family violence with the court, telling the judge that there has been family violence in your case.
  2. Attach a proposed order on your objection to referral to mediation, only filling out the case caption.
  3. Give a copy of the motion and order to the other attorney or other party if not represented. 
  4. The other party may request a hearing on your objection.  If there is no hearing or the court agrees with your objection to mediation, then the court cannot refer your case to mediation.
  5. If your case is still ordered to mediation, the court must order certain protections for your safety, such as keeping you in a separate room from your abuser. 

    Texas Family Code 6.602(d).

How do I prepare for mediation?

Because any agreement reached will be binding and enforceable, it is essential to make a list of issues you want to discuss at mediation, including but not limited to the following:

  • Children (conservatorship, possession, child support, medical insurance, life insurance, who makes decisions about education, acceptable ways to correct child, children exchange, holiday possession)
  • Real property and mortgage
  • Retirement of both spouses and other long-term savings plan
  • Debt (credit cards, loans)
  • Cars
  • Car loans
  • Will the wife have a name change?
  • Will there be a permanent injunction to protect one party?
  • Streaming accounts like Vudu, amazon prime
  • Who pays for the children’s phones?
  • Who keeps the family pets?
  • Who gets furniture and family pictures?

What is a mediation session like?

Mediations may be held on Zoom. You and the other party, any attorneys, and the mediator will be present. If you or the other party wants someone else at the session, all parties must agree, and the mediator consent. 

Generally, each party will pay half of the cost of mediation. However, some providers offer mediation for free.  

The mediator must keep the mediation session private and confidential. 

The mediator will draft a Mediation Settlement Agreement if you reach an agreement. The agreement is binding on both parties if all parties and attorneys sign it. It has the following language: “The parties agree that this agreement is binding and is not subject to revocation and is enforceable by a court of competent jurisdiction.”

A party is entitled to judgment based on a settlement agreement that meets the law’s requirements. However, the court may refuse to enforce it if you can prove that you were forced to sign the agreement, for example. Texas Family Code 6.602(b)(1-3).

Should I agree to mediation if my spouse has been abusive?

Mediation can be helpful when both people have equal power. Both people must be able to say what they want without fear or pressure.

Threats and control are common in relationships where one person is abusive. If the abuser is used to being in charge and making all the decisions, mediation probably won’t work very well.

Mediation may be even more of a problem if your spouse abused you and you don’t have a lawyer.

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