Jeanne M. Huey
Hunt Huey PLLC
FALL 2021 ISSUE:
In Texas, we believe it is better to settle a lawsuit than to fight it out in court. Resolving a lawsuit through settlement gives the parties some control over what happens to them instead of leaving their future in the hands of a judge or jury. The early peaceable resolution of disputes is especially important in family law cases involving children because children with uncertain futures suffer.1 In most cases, the parties discuss settlement informally, but if that doesn’t work, the parties will almost always be required to engage in a process called mediation. Mediation is a form of Alternative Dispute Resolution (“ADR”)2 in which the parties try to resolve their disputes with the help of a trained mediator.3 Because most cases go to mediation, it is important to understand the process and results.
Every state has its own laws concerning mediation. There is plenty of information available on the internet regarding mediation procedures and techniques. However, no two state’s laws concerning mediation, divorce or child custody and support are the same. In Texas, mediation in a family law case can only be understood by looking at Texas laws.
The general laws governing mediation and other forms of ADR in Texas are found in Chapter 154 of the Texas Civil Practice & Remedies Code. Additionally, the Texas Family Code sets out the laws regarding mediation specific to family law cases.4 Mediation can take place in person, at the office of one of the parties’ lawyers, or in a neutral office provided by the mediator. Some courts will order mediation to take place in private rooms in the courthouse. Mediation can also be held remotely via Zoom or another virtual platform that all parties can access on their computer or phone.
How Should a Party Prepare for Mediation?
The day before mediation is scheduled, the parties and their lawyers will receive forms from the mediator or mediation service that must be carefully read, completed, signed, and returned. These typically include the rules for mediation and an agreement to mediate. A party without a lawyer (i.e., a pro se party) will have to sign a document stating, among other things, that the pro se party understands that it is in their best interest to hire a lawyer to represent them at mediation but have decided not to do so.
Mediators are trained professionals, and their fees must be agreed upon and paid prior to mediation. Usually, the parties split the mediator’s fee between them. If the parties do not have funds to pay for mediation, the court will often order them to use a mediation service with trained volunteer mediators who donate their time and work on a pro bono (no charge) basis.
What Will the Mediation Process Be Like?
Mediation is not a trial, and the mediator cannot decide who wins or loses. However, it is important for all parties to go into mediation with basic evidence that supports their claims because the mediator may need that information to explain to the other side why they should compromise their position. One of the first things most mediators will do is ask the parties to explain why they think they should get what they want. Being prepared to answer questions about why they are taking certain positions and how they intend to prove their case will save time and show the mediator, and the other side, that they are prepared and taking the idea of settlement seriously.
Typically, throughout the mediation, parties decide what they are willing to give up in exchange for gaining something they want more. Therefore, it is essential for the parties to think about which of their positions they are willing to compromise on and share that information with the mediator at the outset. Since getting both parties to agree on certain issues and “deal breakers” may take additional time and patience, the more time each party spends thinking about potential compromises ahead of time, the more likely the parties will reach an agreement.
Part of what makes mediation unique is the confidentiality that governs discussions with the mediator.5 Keep in mind that, despite this confidentiality, all lawyers, whether acting as a lawyer or a mediator, have a legal duty to report suspected physical or mental abuse or neglect of a child, the elderly, or the disabled to the proper authorities.6 Certain kinds of settlement communications made during any ADR proceeding are also confidential as to the parties—in other words, the participants cannot disclose them.7
In most cases, the parties in a family law mediation will never meet in person even if they are in the same office. They will be in separate rooms—whether in person or virtual—while the mediator goes back and forth between the rooms trying to find a solution that will settle the case. Cases that involve allegations of family violence have special rules for mediation that are set out in the Texas Family Code and are intended to protect victims of family violence.8
Mediation starts with an opening session in which the mediator reviews the rules that will govern the mediation and obtains everyone’s agreement to mediate in good faith. After the opening session, the mediator meets with each party privately—including their lawyer, if they have one—and asks each of the parties to explain what they think their strengths and weaknesses are and to describe their settlement position (i.e., what it is they want), what they think the other side will not agree to, and so on. The mediator will then negotiate between the parties for the remainder of the mediation trying to help them reach agreement on the issues in dispute.
Helping the parties find common ground for settlement is the mediator’s job. Mediators are neutral because they do not advocate for one party over the other, and they are skilled at helping the parties find solutions and reach agreements that the parties may not have considered before mediation. They are not there to decide who is right or wrong or to give anyone legal advice. In fact, the mediator is prohibited from giving legal advice. If the mediator thinks a party has asked something that requires legal advice, they must tell them to ask their own lawyer and, if they don’t have one, that they should get one. This does not mean the mediator is being rude or doesn’t want to help, rather the professional rules that govern every lawyer’s and mediator’s conduct require them to respond this way to anyone who is not their client and who asks for legal advice.
During mediation, it is an important part of the mediator’s job to point out problems that a judge or jury would notice that the parties may have overlooked or ignored. Both parties should feel confident that when the mediator says things the party may not want to hear regarding their case, the mediator is speaking with the other side and pointing out issues with their case as well.
After helping both parties understand the strengths and weaknesses in their cases more clearly, the mediator then helps the parties find creative solutions that they may have been too angry or upset to find on their own. This is key to helping the parties reach a compromise and, hopefully, an agreement to resolve the case. The mediator also provides a buffer between the parties in family law cases when emotions are running high. It is hard enough to listen and consider compromising without feeling defensive and attacked; a mediator can help turn an angry demand into a calm request that is more likely to be heard and agreed to. Finally, the mediator can make sure that if an agreement is reached, the parties sign that agreement before leaving mediation. For more information about the mediation process and what a mediator does and does not do, the Texas Supreme Court has approved a set of ethics guidelines for mediators that describe the mediator’s role in detail.
If the parties cannot reach agreement by the time the mediation is scheduled to end, the mediator will declare what is called an “impasse.” This means that, given their experience as a mediator and knowing what the parties’ positions are at that point in the case, the mediator does not believe an agreement can be reached and the mediation is over. If this happens, the mediator will file a short report with the Court explaining that the parties were present and negotiated in good faith but could not reach a final agreement. Many cases that do not settle at mediation will settle within a few weeks after the parties have had time to further consider their positions. Post-mediation settlement can take place with or without the assistance of a mediator.
What Happens When an Agreement is Reached During Mediation?
If the parties reach an agreement on all the terms of a settlement, the mediator and the lawyers will write down the parties’ agreement in a Mediated Settlement Agreement (“MSA”) to be carefully read, initialed, and signed by the parties before the mediation ends. A typical MSA is a few pages long and outlines the basic terms of the agreement.
Rarely is anyone in a family law matter completely satisfied with all of the terms in the MSA. This is because a settlement is only reached if both parties compromise, and that means that no party got everything that they wanted. Although the parties who have entered into a settlement agreement at mediation may want to change their minds, the Texas Legislature has included a special provision in the Texas Family Code providing that once an MSA containing certain language is signed by the parties and mediator, it is irrevocable.9 “Irrevocable” means that absent specific circumstances,10 the MSA will become the judgment in the case, even if one side or the other decides to change their mind or allege a mistake when the agreement was signed.
How Does a Mediated Settlement Agreement Becomes a Final Order?
Reaching an agreement and signing an MSA at mediation does not mean that the case is over. In nearly every case, it is followed by a lengthy final order that includes every term in the MSA. The language required by the Texas Family Code still has to be drafted, reviewed, and signed by the parties and the judge. If the parties cannot agree on the language in the final order, the MSA will not be revoked or changed. Instead, the parties will need to go to court and ask the judge to decide how the terms of the MSA should be expressed in a final order.
Since subsequent arguments concerning the terms of the final order can be time consuming, clients should ask their lawyers, if they have one, to explain all the requirements for a final order in their case before going into mediation. This will avoid surprises when the MSA does not explicitly include everything a final order requires. If one or both of the parties has a lawyer, to avoid arguments after mediation about the order language, part of the final order can be drafted and agreed to during mediation and included in a much longer MSA that leaves no doubt about what the parties agreed to.
Mediation has proven to be an effective way to efficiently resolve family law cases without having to incur the time and expense of preparing for and going to trial. It works best when the parties are prepared. Each party should decide in advance what issues matter the most to them to try to avoid fighting about things that don’t really matter. The parties should know what the Texas Family Code requires in a final order so they are not surprised that the final order is so much longer and more detailed than the agreements set out in the MSA. With that kind of preparation and an understanding of the process, mediation can be an effective way to reach a final resolution and end the conflict so that the parties can move forward.
1 Tex. Civ. Prac. & Rem. Code Ann. § 154.002.
2 Tex. Civ. Prac. Rem. & Code Ann. § 154.003.
3 Tex. Civ. Prac. Rem. & Code Ann. § 154.051–154.055.
4 Tex. Fam. Code Ann. § 6.602 and § 153.0071.
5 Tex. Civ. Prac. & Rem. Code Ann. § 154.053.
6 See Tex. Fam. Code Ann. § 261.101, § 107.007(b), 153.0071(g); Tex. Civ. Prac. Rem. Code § 154.073(f); Tex. Hum. Res. Code Ann. § 48.051(a)–(c).
7 Tex. Civ. Prac. & Rem. Code Ann. § 154.073.
8 See Tex. Fam. Code Ann. § 6.602(d), § 107.007(b), 153.0071(e)(1), (f).
9 Tex. Fam. Code Ann. § 153.0071(d).
10 See Tex. Fam. Code Ann. § 153.0071(e)(1).