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Mediation is a great tool.  It gives opposing parties the opportunity to settle their case without the time and expense of a trial.  Moreover, if an agreement is reached it removes the uncertainty inherent in the whims of trial court judges.

Mediation involves brining the parties together to meet with a neutral third party, an experienced lawyer or a former judge.  The mediator though a series of meetings with each side explored the opportunity for an agreement that both parties can live with.  However, the mediator typically isn’t free.

Fight Over Who Should Pay Mediator

The dispute in Ex parte Culverhouse was over who should pay for a mediator in a divorce.  Typically the parties will split the cost of mediation equally.  Indeed, the trial court in this case ordered that the parties attend mediation and that the husband and wife should split the cost equally.

Wife Objected to Paying for Mediation

The wife didn’t want to split the cost equally.  The wife didn’t want to go to mediation, or so she said to the trial judge.  In Ex Parte Culverhouse, the husband had asked the court to either give their case a trial date or send it to mediation.  The trial court sent it to mediation and ordered husband and wife split the cost.

The wife appealed the trial court’s order that they split the cost directly to the Court of Civil Appeals.  According to the wife, the husband alone was responsible – by law – for paying the mediator’s fee.  The Court of Civil Appeals agreed with her.

You Ask for Mediation, You Pay for It

A trial court can order mediation in three circumstances: (1) the parties agree; (2) the court can decide to order it without a request from the parties; or (3) one party can request it.  In all but one of those circumstances, the trial court can order the parties split the fee.  Where only one party requests mediation, the requesting party must pay the mediator’s fee alone.

Because the husband in Ex Parte Culverhouse requested mediation, the trial court was required to order it.  However, the trial court was also then required to order the husband to pay for it.

Don’t Ask for Mediation, Suggest It

In the future, people in the husband’s position may want to “suggest that mediation would be helpful” but stop short of requesting it.  Most trial court judges would rather a mediator take a crack at resolving some or the issues before a case goes to trial.  So, if in the future someone like the husband wants mediation, they should suggest that they think mediation could be helpful and prevent a trial.  However, they should also be clear that they are not formally requesting the court order mediation, otherwise they’ll be the one paying for it.

Where to Learn More About Mediation: