By: Bryce Hopson
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All Things Mediation
Very few family law cases end up in a final trial, whether before a jury or before a judge. Most of the time, parties are able to settle their differences at some point during the course of the litigation. Sometimes, these settlements are reached informally, by passing settlement offers back and forth between the lawyers and/or the parties until both sides have come to an accord on the terms. Most of the time, however, these settlements are reached in a much more structured environment: mediation.
Mediation is a form of alternative dispute resolution that involves the parties and their attorneys and a neutral mediator sitting down over the course of a day and working out the details of a comprehensive settlement agreement. There are myriad benefits to settling through mediation that are not afforded to other types of informal settlement agreements or approaches. First, the back and forth happens in a single day, making it more efficient, and therefore less time for circumstantial and environmental factors to impact one party’s position (which inevitably happens when a settlement is being negotiated over the course of 2-3 months).
Second, the legislature has promulgated certain statutorily authorized protections and advantages to an agreement that is reached under the auspicious of mediation. The Texas Family Code provides that a mediated settlement agreement is binding and cannot be revoked, and that once it has been signed, the parties are entitled to judgment as a matter of law on the terms listed in the MSA.
This concept of being entitled to judgment on the MSA is important, especially in the context of family law cases, because typically, the family court judge has broad discretion to do what it finds is in the best interest of the child. That means that in some cases, the parties may bring an informal settlement agreement in front of the judge, and the judge might decline to enter judgment on that agreement because the judge thinks it is not in the best interest of the child.
For example, the parties may negotiate terms for possession and support that includes alleviating one party’s child support obligation, and many judges have been known to kick these agreements out and force the parties to go back to the drawing board and come up with something else. However, if the parties reach those agreements through formal mediation, then the option of rejecting the agreement is taken out of the hands of the judge, and the parties are entitled to have a judgment entered in accordance with what they both agreed upon.
Recently, the supreme court of Texas issued a holding that clarified a wide-standing issue related to mediated settlement agreements in the family law context. The holding stated that mediated settlement agreements that are signed before a lawsuit is even filed are given the same statutory authority as MSA’s that are signed during the pendency of a lawsuit. This is an important distinction, as oftentimes, parties to a family law situation will seek to modify the terms of their custody orders as their children get older. Previously, family lawyers would typically advise them that the most sure-fire way of ensuring that a deal was protected would be by filing a lawsuit and scheduling a mediation.
Obviously, there are many parties who did not want to go through the hassle of filing a lawsuit or did not want to be perceived as the aggressor in these types of situations, and would have preferred to simply offer mediation as an alternative. Now they can, and now these agreements are afforded the same iron-clad protections as those reached during an active lawsuit. Either way, it is always best to consult with an experienced family law attorney before trying to settle your case. Call the attorneys at Hance Law Group today and give yourself the advantage you deserve.
About the Author
Bryce Hopson is an associate attorney at Hance Law Group. Bryce excels in breaking down complicated legal issues and examining them with his clients in a clear, comprehensible, and concise manner, in matters such as property division, child custody, and pre-marital agreements.