The Detente Process

Collaborative Mediation versus Litigation

Detente's collaborative divorce mediation is very different from divorce litigation. Below are three tables that contrast them in terms of effects on family relationships; process; and use of lawyers.

I. EFFECTS ON FAMILY AND RELATIONSHIPS

Detente Divorce MediationLitigation in Divorce Courts
Promotes healthy restructured familyDestroys relationships with children, family, friends
Personal matters kept private and confidentialPublic embarassment in hearings, online records
Spouses are more likely to uphold voluntary agreementsSpouses often violate court imposed terms
Focuses on common ground; problem-solving; futures; cooperationFocuses on blame and proving past bad acts in court
Spouse does only what she or he agrees toJudge imposes decision; outcome unpredictable for family

II. PROCESS DIFFERENCES

Detente Divorce MediationLitigation in Divorce Courts
Least expensive; fast, usually a few monthsMost expensive; could take years for trial and appeals
Unbiased professionals help both spousesPaid experts defend positions; find fault
100% of efforts, money are focused on early settlement with 95% chance of successLawyers paid from the start to prepare for trial that likely will not happen
Voluntary information exchangeDepositions, interrogatories, subpoenas
Two hour sessions on your schedule; pre-agreed agendaOn court's time; judge or lawyer can raise surprise issues
Balances power, levels playing fieldFavors spouse with most control or money

III. USE OF LAWYERS

Detente Divorce MediationLitigation in Divorce Courts
One neutral attorney-mediator for both spousesEach spouse needs own lawyer
Spouses can negotiate without lawyers presentNegotiations/trial are treacherous without lawyers
Spouses choose to avoid courtLawyers, trial used as threats and for coercion
Hear same thing at the same timeTalk through lawyers; increased cost, miscommunication
Can try mediationCannot "try" litigation

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Collaborative Mediation versus Collaborative Law

The Detente collaborative mediation process is unique. It is not collaborative law. Collaborative mediation combines the simplicity and cost effectiveness of mediation (parties negotiate directly with the help a neutral third person) with the most effective strategies of collaborative law:

  • Family counselor used for communication
  • Full financial disclosure
  • Spouses control outcome
  • Legally binding agreement
  • Confidentiality protected
  • Preserves family relationships
  • Voluntary, structured process

Collaborative mediation has proven to be a successful hybrid process, with a settlement rate of 95%, which is significantly higher than either mediation (80%) or collaborative law (86%) alone.

The way collaborative mediation works in Detente is two unbiased persons (an attorney-mediator who knows family law and a marriage/family counselor who manages emotions) help you negotiate and problem solve to reach equitable agreements. We educate you about the law (without giving legal advice), encourage communication (without doing therapy), help you gather all necessary information, and flesh out your options so you are empowered to make informed decisions and craft practical and realistic settlements to divorce, child support, and child custody disputes that work for your family's individual interests, needs, and budget.

Divorce lawyers are always welcome in Detente mediation, but no one in collaborative mediation has to have a divorce lawyer. If someone does, he or she can decide if the divorce lawyer will participate in the mediation sessions or assist offline to develop options, review agreements, and do legal paperwork. If negotiations break down and the collaborative mediation ends, you can still keep your lawyer. Neutral professionals such as financial, tax, real estate, mortgage, and parenting specialists are available in collaborative mediation, but only if needed.

In collaborative law, (not collaborative mediation) each spouse is represented by his or her own collaborative lawyer. There is also a team of financial, mental health, and parenting professionals who may also be required to attend every meeting with the spouses and their lawyers. If the couple does not reach settlement in collaborative law, then all the professionals must withdraw, including the collaborative lawyers. Both of the spouses must then hire new divorce attorneys to take any remaining disputes into litigation.

In contrast, in collaborative law each spouse is represented by his or her own collaborative lawyer. There is also a team of financial, mental health, and parenting professionals who may be required to attend every meeting with the spouses and their lawyers. If the couple does not reach settlement in collaborative law, then all the professionals must withdraw, including the collaborative lawyers. Both of the spouses must then hire new divorce attorneys and experts at great expense to take any remaining disputes into litigation and potential appeal after trial.

Collaborative law serves many couples and it is a better way to divorce than litigation, but it does not fit everyone. Collaborative mediation may be the best solution for those who want a private, amicable divorce (or separation or reconciliation); cannot afford the full collaborative law team or don’t need it; do not want to risk losing their lawyers if they do not settle; or want to do the negotiating themselves with professional help but with limited or no use of divorce lawyers in the process.

Collaborative Mediation versus Collaborative Law

COLLABORATIVE MediationCOLLABORATIVE LAW
Lawyers are optionalLawyers are required
Spouses can negotiate without lawyers presentLawyers present for all negotiations
Keep lawyers if no settlementLose lawyers if no settlement
One neutral attorney-mediator for both partiesAttorneys diligently represent their clients; mediator rarely used
Other neutral professionals only when neededNeutral professional team required
Relatively inexpensiveRelatively expensive
Settlement rate 95%Settlement rate 86%

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Why is collaborative mediation less expensive than litigation?

Detente collaborative divorce mediation costs less than divorce litigation because:

  1. Everyone hears the same thing at the same time. Spouses or parents talk directly to each other with the help of a family law attorney-mediator and divorce coach (marriage/family counselor) rather than going through divorce lawyers who charge every time they pick up the phone to talk to you or the other lawyer. Communications in divorce litigation go like this (assuming no phone tag): Spouse 1 talks to Divorce Lawyer 1, who calls Divorce Lawyer 2. Divorce Lawyers 1 and 2 discuss the topic. Divorce Lawyer 2 talks to Spouse 2, then calls Divorce Lawyer 1, who talks to Spouse 1. This gets expensive fast, especially when the two divorce lawyers talk to each other. If you've ever played the game where a sentence gets whispered from one person to another and in the end it does not in any way resemble what it was at the beginning, then you'll especially appreciate the danger of this kind of family lawyers' communication in a divorce.
  2. Communications. We teach you a new and effective way to communicate directly with each other. You will learn to talk to and hear each other like never before. Your conversations in Detente are constructive instead of turning into arguments.
  3. T.R.U.C.E. You will learn and practice in every session Detente's exclusive five step, easy to remember T.R.U.C.E. dispute resolution method that works. Bottom line: less miscommunication and more cooperation mean you get more done in less time.
  4. You decide whether and how to use divorce attorneys. Divorce attorneys are always welcome in Detente; but even if they have them, 99% of our couples don't bring divorce lawyers into mediation sessions. Having the authority to make that decision saves you money.
  5. You decide how many sessions you need. Detente Collaborative Mediation is completely voluntary and the number of times you utilize our collaborative divorce mediation services is up to you. That gives you control over the cost of the process.

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What does a marriage/family counselor do in mediation?

A marriage/family counselor has skills that very few lawyers do. Our marriage/family counselors who co-mediate with an attorney-mediator at Detente Mediation are especially trained in divorce mediation, collaborative law, and communication techniques. They are uniquely qualified to help spouses or parents manage emotions and express their interests and needs in a way that the other can understand.

The marriage/family counselor can be effective with those who are timid and shy, loud and pushy, and everything in between.

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Interest-based Negotiation versus Positional Bargaining

Positional bargaining is where parties negotiate based on a position. For example, suppose there is one orange, and you and someone else want it. In positional bargaining, each of you would say, "It is mine and I'll fight you for it". It is hard to know what is really important to a party when they only state a position.

Suppose someone comes along and cuts the orange and gives half to each of you. Is it a fair and equal division? Maybe. But what if you own an orange juice company and the other guy owns a marmalade factory? You want the pulp. He wants the peel. These are your interests. Does it look like a good split now? You both could have had 100% of what you wanted - if the person who cut the orange had simply asked each of you why you wanted it.

Sometimes a spouse is adamant about wanting the house in a divorce, even if it is clear she or he will not be able to afford it alone. Wanting the house is a position. When asked why the house is so important, the spouse may answer simply that he or she wants to keep the children as safe and stable as possible in light of the upheaval of the divorce. That is an interest.

Frequently, once you understand the interest, you can find something else that might satisfy it better. For example, once the spouse sees that the children would not feel protected if the spouse were to lose the house later, the spouse could try to negotiate other terms that would allow him or her to buy a less expensive home in which to establish a new, permanent residence for the children.

Finding other ways to satisfy the need is interest-based negotiation.

The Detente mediator trained in interest based negotiation asks why you feel so strongly about your position, rather than just asking what the position is. The underlying reason it is important to you then becomes the focus of the negotiations and of a successful mediation.

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What information do we exchange?

In Detente Mediation you and your spouse or parent of your child will sign a written agreement stating that you will make a full financial disclosure and voluntarily exchange relevant information with each other regarding your divorce or conservatorship (child custody, possession, and parenting plan). This avoids the need for expensive, stressful, and time-consuming discovery of the same information through depositions and formal written requests for documents that happens in litigation. What you exchange in mediation in Texas is private and confidential. It cannot be used outside of mediation except under certain limited circumstances.

"Relevant" generally means information and documents that you or your spouse would consider important to making a decision about how to resolve your issues in your divorce or conservatorship (child custody, possession, and parenting plan). If there is a question in your mind about whether something is "relevant", one option may be to ask a neutral family law divorce lawyer or a retired judge for a non-binding opinion.

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Does a Detente mediator make a binding decision for us?

No. The mediators cannot and will not impose any decision on you. You only have to do what you agree to in mediation. Our team of an attorney-mediator and a marriage/family counselor are there to help all the parties reach a satisfying resolution to their divorce or conservatorship (child custody and possession). The attorney-mediator is neutral and does not represent anyone, but he or she will help develop options for settlement and evaluate whether a solution meets your individual goals and needs.

However, when you both sign a written settlement agreement in mediation, it is binding. For that reason, the mediator will advise each of you to have a divorce lawyer of your own choosing review the terms before you sign the final agreement.

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How does it work with neutral experts?

In Detente Mediation you can hire neutral experts at a shared cost to help you resolve family law divorce or conservatorship (child custody, possession, and parenting plan) disputes. Neutrals are not required but can be very useful. The idea of the neutral expert in a family law divorce or conservatorship (child custody, possession, and parenting plan) dispute is to give you an objective opinion on a particular issue that requires the analysis and review of a person with a higher level of skill, education, or expertise than the parties or the mediators have.

For example, a divorcing couple or parents with a special needs child may bring in a consulting child specialist with knowledge of the child's particular disability such as autism, ADD, ADHD, dyslexia, Downs Syndrome, and other learning disabilities or emotional problems to help them understand what conservatorship (child custody, possession, and parenting plan) would be in the child's best interest. Divorcing couples frequently benefit from the services of a certified divorce financial analyst who can assist in organizing the assets and debts, retirement IRA, 401K, and pension accounts, etc., and in developing strategies for their equitable division. There are many tax considerations in divorce and a CPA or tax attorney can be invaluable in preventing surprise tax liabilities down the road from poor planning in the divorce stages.

In contrast, in litigation a party's divorce lawyer may hire an expert to defend that party's position and usually to place blame on the other spouse. They are typically very expensive and their opinions and the basis of them are closely scrutinized by judges and the other spouse's lawyer.

The Detente mediator will gladly provide you references in our resource network to the experienced, unbiased divorce financial, tax, real estate, mortgage, and business valuation professionals, as well as conservatorship (child custody, possession, and parenting plan) child specialists.

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What happens if we can't reach agreement in Detente Mediation?

Detente Mediation, unlike litigation, is voluntary. Ironically, having the freedom to walk away is what often keeps spouses at the negotiating table. If you have given mediation an honest try and you simply cannot reach agreement on all issues, then you can decide to leave unilaterally. Your next stop could be collaborative law, arbitration, or litigation.

We would encourage you before jumping out of mediation to express your concerns to the family law attorney-mediator and marriage/family counselor so we can try to assist you with ideas and options to overcome whatever is holding you back. Sometimes talking with another professional like a child specialist or divorce financial planner can give you new ideas, options, and strategies to break a log jam. We know you invest your time and money into mediation, and we will do whatever we can to help you reach sensible solutions to your divorce or conservatorship (child custody, possession, or parenting plan) disputes.

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How does marriage separation work in Texas?

There is no legal separation in Texas. That does not mean one of you can't move out. It means the law and creditors will continue to treat you and your spouse as a married until your marriage is legally dissolved by divorce, even if you are not living together. In other words, assets and debts you or your spouse acquire while you are separated are still presumed to be community property (owned by both of you) even if the property or debt is only in one of your names.

Separation is very unsettling to the entire family, especially if the person who usually pays the bills moves out. Separation done badly can lead to disruption for children, resentment, and a hostile divorce or break up. Without an agreement to restore the order, you run the risk that the sheer chaos, uncertainty, and emotional upheaval of an unstructured separation may make it impossible for either of you to concentrate on fixing the relationship if that is a goal.

Separation done right through Detente with a negotiated separation agreement restores order so you can better focus on what is important to you to accomplish by your separation - whether that is reconciliation or preparation for divorce. You need to be aware that a separation agreement may not be enforceable in the family courts but rather in the civil courts as a contract.

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What is Custody and Parenting Plan Mediation?

A "parenting plan" is a detailed plan for when parents will share time with a child (access and visitation), and an outline of each parent's rights and responsibilities (custody/conservatorship) including who will make legal and other decisions for a child like where the child lives and goes to school. The parenting plan must be included in a divorce decree (or in a Suit Affecting the Parent-Child Relationship "SAPCR" if the parents are not married).

The law presumes it is in the best interests of a child in Texas for both parents to have custody (joint managing conservatorship) where parents share decision-making for the child, and quality time (access and visitation) with their children unless this would result in danger to the child's physical, psychological, or emotional development. Parents can cooperatively parent apart and provide a safe and secure environment for their children. However, arguments about the parenting plan can escalate into wars that permanently damage your children or their relationships with you and cost you dearly in family lawyer or divorce attorneys' fees. If the parents cannot reach agreement, a judge will likely order parenting time under a Standard Possession Order that sets the same visitation schedule for every family.

Parents who know they have a choice often prefer instead of the Standard Possession Order to negotiate a modified version or a custom parenting plan to suit their own family. We can do this in mediation, and if needed, we can also bring in a child or parenting specialist to assist with planning for any family or child with unique needs.

Remember, you will not be husband and wife anymore after your divorce, but you will always be Mommy and Daddy. You can keep your children out of the middle and save money by reaching agreements over parenting time and conservatorship through mediation rather than going to court.

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What is Post-Divorce Mediation?

Sometimes post-divorce events that necessitate modification of your divorce decree or parenting plan, like losing or changing jobs, relocating, or buying a car and insuring your teenager, can be even more difficult to deal with than the issues you tackled during the divorce itself. Emotional scars you thought were gone might suddenly re-appear and open old wounds for you and your family. Older children will react differently to conflict than they did when you were first divorced.

Collaborative mediation eases the intensity of post-divorce conflict, and allows for effective communication that saves children and you from feeling like you are right back where you started when the divorce began. Younger children who have adapted to a divorced family will not have to be stressed by the parents' going to court. When older children feel the need to speak for themselves to be heard, they can safely do it in the protected environment of a private mediation session. We can help you amicably resolve post-divorce issues.

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Collaborative Mediation versus Traditional Mediation in Texas

Collaborative mediation is not done the same way as traditional, adversarial mediation in Texas. Mediators in Texas are generally trained to take damaging information and evidence that each lawyer develops in the course of litigation and use it against the other party to try to create so much fear of losing at trial that the parties would rather settle than risk it. Traditional mediation is usually done near the end after the lawyers on each side have been paid lots of money. Traditional mediation sessions are usually 8 to 12 hour marathons. They often finish when everyone is too exhausted to go on. Unfortunately, fatigue can cause spouses to make decisions "just to get it over with" that they might later regret. Keep in mind the lawyers must prepare for trial from day one in case there is no settlement at mediation. It is too late to get ready for trial if traditional mediation fails. Each spouse pays for that expensive preparation, even though there is only a 2% to 4% chance a trial will happen. 96%-98% of all divorces settle before a verdict is handed down.

In contrast, collaborative mediation essentially replaces litigation with a cooperative process that does not require attorneys. Collaborative mediators work together with the parties during a series of two hour mediation sessions to learn their goals and interests, help them gather the information they need, identify issues, find options, and negotiate an equitable property division and parenting plan if they have children. All efforts are toward settlement from the start. That makes collaborative mediation much more efficient and cost effective than going through the entire litigation process and waiting to try to settle in traditional mediation at the end. Another plus with collaborative mediation is the parties get to "test drive" their decisions and see if they work for everyone before committing to them for the long term in the divorce decree. The chart below compares the collaborative mediation and traditional mediation.

Collaborative Mediation versus Traditional Adversarial Mediation

COLLABORATIVE MediationTRADITIONAL ADVERSARIAL MEDIATION
Lawyers are optionalLawyers are generally required
One neutral attorney-mediator for both spouses; promotes cooperative settlementsLawyers represent each spouse; create conflict by presenting evidence of stronger position
Done firstDone last
Legal information for both partiesLegal advice given by each lawyer to each client
Interest based negotiationPositional bargaining
Neutral professionals assist both spouses objectivelyPartisan experts oppose each other to support client's position
Settlement rate 95%Settlement rate 80%
Full voluntary financial disclosureFormal discovery of financial information
Family counselor facilitates communication, manages emotionsNo family counselor; lawyers generally do not allow clients to speak

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What are child support and medical support in Texas?

Parents who are divorcing, or never married parents who are splitting up, are usually aware that they owe a legal obligation to financially support their children. Beyond that, most don’t know who pays, how much, for how long, or that they are also required to provide medical support.

Importantly, they generally are unaware that the State of Texas encourages parents to agree on an amount of child support - even if that amount is different from the Texas guidelines or is zero! The trouble they run into is how to decide the correct amount. It is difficult enough to have a discussion about child support. It is impossible if you know little or nothing about it. Read more detail on our Child Support: What Is It? page.

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How do you calculate child support in Texas?

Texas has a child support formula to determine the amount the state "presumes" is in the child’s best interest. In mediation we help you with these calculations. In a nutshell, child support in Texas is determined by figuring out the average net monthly resources of the paying parent and applying guidelines established by the Texas legislature that require paying a percentage of those average net monthly resources depending on how many children there are. The percentages are slightly different if the paying parent has a legal responsibility to also pay for other children who are not involved in the parents’ current dealings. Read more detail on our Child Support: How to Calculate It page.

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