Mediation is defined as “a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them.” See Texas Civil Practice and Remedies Code ¤154.023. Many courts have adopted a mandatory mediation requirement before the Court will set the case for final trial. Mediation is strongly encouraged as an alternative method to the long and costly process of a trial.
II. APPLICABLE STATUTES
The rules for mediation are enumerated in Chapter 154 of the Texas Civil Practice and Remedies Code. On either the motion of a party or the court, a case may be referred to mediation. See Texas Civil Practice and Remedies Code ¤154.021(a). A motion and order for mediation are included as APPENDIX A and B. If a Court refers a case to mediation, it shall notify the parties of its determination. See Texas Civil Practice and Remedies Code ¤154.022(a). Once a Court notifies that parties that the case has been referred to mediation, the parties may, within ten (10) days after receiving such notice, file a written objection to the referral. See Texas Civil Practice and Remedies Code ¤154.022(b).
Any communication relating to the subject matter of a dispute which is made by a participant in an alternative dispute resolution procedure is confidential and is not subject to disclosure. Such communication may not be used as evidence against the participant in any judicial proceeding. See Texas Civil Practice and Remedies Code ¤154.073. The exceptions to this rule are (1) if the oral communication is discoverable independent of the procedure, or (2) if the rule conflicts with other legal requirements for disclosure of communication.
IV. DECIDE IF THE CASE IS RIPE FOR MEDIATION
Prior to scheduling a mediation, make sure the following have been completed:
Mediation can be costly and generally occurs only once per case. Preparation will give you an increased probability of reaching a settlement. Also make sure you have at least attempted to settle the case prior to mediation.
V. MEETING WITH YOUR CLIENT PRIOR TO MEDIATION
A. Explain the process.
B. Explain that the process is confidential.
C. Explain the time involved.
D. Avoid scheduling conflicts.
E. Make sure all key players are available.
VI. PREPARING FOR MEDIATION
A. Send the mediator relevant information.
B. Anticipate spouse’s offer.
C. Prepare a settlement offer.
D. Prepare a mediation notebook.
If your case does not warrant a mediation notebook, at least make sure that your file is in order so you can easily access all the information you may need.
VII. EFFECT OF A WRITTEN SETTLEMENT AGREEMENT
Texas Civil Practice and Remedies Code ¤154.071 states that:
(a) If the parties reach a settlement and execute a written agreement disposing of the dispute, the agreement is enforceable in the same manner as any other written contract.
Make sure that your client is aware that at the end of the day (or evening), once the parties reach a settlement and execute a written agreement, that agreement is enforceable as a written contract.
VIII. USEFUL STATUTES AND CASE LAW REGARDING MEDIATION
A. Padilla v. LaFrance, 907 S.W.2d 454 (Tex. 1995).
This case was distinguished in Cary v. Cary, 894 S.W.2d 111 (Tex. App. — Houston [1st Dist.] 1995, no writ) wherein the magic application of Section 154, T.C.P. & R.C. was not recognized. However, it is felt that Cary correctly recognized that by one’s repudiation prior to entry of decree precluded the court from entering a consent judgment. In accompanying dictum, the Houston Court recognized that the Mediated Settlement Resolution remains binding under principles of contract law and the pursuit of such would be the appropriate remedy.
The Supreme Court in May, 1995, resolved the conflict between Ames and Cary, and also spoke one’s ability to repudiate under Rule 11 in Padilla, when it stated as follows:
“The withdrawal of consent as many of us have mystically believed was available under Rule 11 is not as inalienable as heretofore believed.”
A close reading of Padilla indicates that the only impact that a withdrawal of consent or repudiation might have is to preclude the Court from entering an agreed decree. Justice Phillips went on to state that if one withdraws their consent prior to filing to the agreement ( pursuant to Rule 11) then the appropriate remedy would be the pursuit of judgment based upon the contractual obligation arising out of the Rule 11 Agreement (as opposed to an agreed decree). In Padilla this was done by remanding the case to the trial court for ostensibly the granting of a summary judgment encompassing the terms of the mediated settlement agreement.
A. Section 154.021, Texas Civil Practice and Remedies Code, allows a Court, even on its own motion, to refer a matter to mediation even without the consent of the parties or attorneys;
“I AM AWARE THAT IT IS THE POLICY OF THE STATE OF TEXAS TO PROMOTE THE AMICABLE AND NON-JUDICIAL SETTLEMENT OF DISPUTES INVOLVING CHILDREN AND FAMILIES. I AM AWARE OF ALTERNATIVE DISPUTE RESOLUTION METHODS INCLUDING MEDIATION. WHILE I RECOGNIZE THAT ALTERNATIVE DISPUTE RESOLUTION IS AN ALTERNATIVE TO AND NOT A SUBSTITUTE FOR A TRIAL AND THAT THIS CASE MAY BE TRIED IF IT IS NOT SETTLED, I REPRESENT TO THE COURT THAT I WILL ATTEMPT IN GOOD FAITH RESOLVE CONTESTED ISSUES THIS CASE BY ALTERNATIVE DISPUTE RESOLUTION WITHOUT THE NECESSITY OF COURT INTERVENTION.”
The above statement must be printed in boldfaced type or capital letters and signed by the party.
IX. PREPARING YOUR CLIENT FOR MEDIATION
A. Meet with Client
Prior to mediation day, it is essential to meet with your client and, as applicable, any experts to formulate a game plan.
B. Pre-Mediation Housekeeping
This is the era of alternate dispute resolution in Texas family law. Due to the time and expense of litigation, Texas litigants and attorneys have sought relief and the Texas Legislature has responded.
Mediation has proven quite successful — it is estimated that over 90% of the cases which were submitted to mediation are resolved in a meaningful way. The parties appreciate the opportunity to have a say, a decision in their future and the future of their children. The mediation process, whether caucus style or pure form should be utilized in almost every case where negotiations between counsel have failed.
If your case does not settle fully in mediation at least try to reach settlement in as many issues as possible and submit these to the Court in the form of a mediated settlement agreement.
Jim Loveless and Kimberly M. Naylor practice family law with Loveless & Associates in Fort Worth, TX.