Mediation is a type of alternative dispute resolution which is often used in Texas courts, and even more so in family law cases. The Court has the power to compel the parties to mediate under Section 6.602 of the Texas Family Code and Section 154.021(a) of the Texas Rules of Civil Practice and Remedies Code. Many Courts have standing orders compelling the parties to attempt mediation before having hearings, unless there is an emergency.
Generally speaking, mediation occurs the following way. The parties and their respective attorneys sit in different rooms of the mediator’s office. The mediator is normally an experienced family law attorney or a retired judge. The mediator shuttles back and forth between the parties and attempts to negotiate a settlement. The settlement may be for either temporary orders, or, for final orders.
The Court can refer the case back to mediation (again) and even sanction the party which chose to avoid mediation or to mediate in good faith.
It is important to note that a party does not have to actually agree to anything in mediation. Attendance for mediation may be mandatory; agreeing to something is not. It is the hope of the Court that simply attending mediation will spur on some settlement. Mediators themselves are highly trained in conflict resolution and often help get the parties closer to a settlement if at all possible.
Mediation has a good track record in that more than half of cases enter into an agreement in mediation. For these reasons, the courts favor mediation. However, a Court can waive the mediation requirement if there are allegations of family violence or for other good reasons, on a case-by-case basis. If a party wants mediation waived, then a Motion to Waive Mediation must normally be filed with the Court, explaining the reasons for such a request.
Assuming there is a settlement in mediation, then the parties will normally sign a Mediated Settlement Agreement (“MSA”). With few exceptions, and MSA is binding, and a party that signed an MSA must abide by it. Reneging on an MSA is normally quite difficult, and an MSA can be enforced in Court much like a court order.
If the parties cannot come to a settlement in mediation, the mediator will send a notice to the Court of an “impasse,” and the case will continue.
While not common, some courts will even ask the parties to mediate twice – once at the onset of the case, and once before trial. Mediations are most common in family cases where children are involved.
Naturally, uncontested matters are not subject to mediation since the parties are already in agreement.
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