Family courts in Texas are overburdened with cases. I’m not telling you this to push you towards feeling bad for court staff or judges, necessarily. My intention in sharing this information with you is to provide some context for telling you that courts across our state have become huge proponents of mediation. If you’ve never heard of mediation or don’t know much about it this blog post is for you.
Mediation is a process whereby you and your attorney, your opposing party and their lawyer, and a third party mediator agree up on a date and time to “mediate” and attempt to resolve any outstanding issue in your family law case.
Mediation is utilized in both child custody and divorcecases. In a perfect world, you and the opposing party will settle your case in mediation and therefore would be able to avoid having to go to court and have a judge make a decision for you all.
A document called a mediated settlement agreement (MSA) is the result of your mediation session. This document will contain all of the agreements made by you and the opposing party. All parties, their attorney and the mediator will sign off on the document.
Perhaps the most important part to signing off on a MSA is understanding that doing so means you cannot wake up the following morning (or any subsequent morning) and change your mind about your decision to settle on those particular issues. Our state law, contained in the Texas Family Code, requires courts to enter an order based on the agreements contained in a mediated settlement agreement.
Generally, going back in time to attempt to change a MSA is not possible. Once you have agreed to certain terms as contained in the MSA and it has been filed with the court there is no going back.
Why in the world would someone want to do away with their MSA?
After all of the stresses associated with a divorce or child custody case, finally being able to mediate and settle can be the most rewarding experience for parties to the case. Rather than proceed to a have a judge make a decision for the parties, they have instead chosen to work together to hammer out agreements that will form the basis for their final order. There is a great deal of peace of mind and finality that comes forth as a result of reaching a settlement in mediation.
However, there are circumstances that I could see a party have second thoughts about the agreements that were reached. Many people in mediation get to a point that after sitting in a room with an attorney for hours at a time, he or she is just ready for the whole process to be over with.
This is in spite of their attorney and the mediator reminding him or her that the decision to settle is theirs alone and that the attorney is not in a position to make the decision for him or her.
Signing off on a MSA may seem like a good decision at first, but sometimes once people remove themselves from that setting and have a chance to think there may have been an important issue or circumstance that was not taken into consideration.
Can you think of anything that would be relevant in your life being missed in a final negotiation session? Failing to remember a key point or piece of evidence that affects you or your children would probably upset and frustrate you considerably. Now you have an order that doesn’t reflect all of the information as you see it and you’ve been told there is no going back now.
Whether you’ve agreed to have possession of your children based on your old work schedule and not your new one, or you decided against pursuing an above guidelines level of child support second thoughts can occur in a family law case.
I have had a handful of clients in my time practicing family law do exactly as I told them the previous day they would not be able to- contact me early in the morning following mediation and tell me that they had made a mistake. Was there anything I could do to erase the settlement agreement that he or she had entered into? I will always take a deep breath and tell them no, that what had been agreed to was now binding.
Either myself or the other attorney would work on drafting an order based on the language of the settlement agreement. Likewise, either the mediator or one of the attorneys would be filing the settlement agreement with the Court. Your trial date will be waived and the meat and potatoes portion of the case will have been concluded.
Advise on entering into a MSA
I cannot speak in absolutes, but it is almost certainly a better idea to settle your case in mediation than to try your hand at a trial. If you think you may have reservations about a settlement agreement being binding, imagine a judge issuing a decision that goes against everything that you and your attorney had fought tooth and nail for over a course of a few months.
If you understand that a MSA is binding and fully comprehend every issue that you are settling upon then you should have no problems with mediation or the results of a settlement agreement.
Keep in mind that the fact that a settlement agreement is binding can protect you as well. Suppose the shoe were on the other foot and you were entirely satisfied with a settlement agreement from mediation. What if your spouse called his or her lawyer and wanted the agreement overturned? This is just as likely a scenario as the one wherein you are the party trying to void an unavoidable agreement.
Questions about mediation and mediated settlement agreements? Contact the Law Office of Bryan Fagan
The Law Office of Bryan Fagan successfully represents clients in mediation with regularity and in so doing has helped negotiate settlements of all shapes and sizes. To learn more about this process please contact our office today. A free of charge consultation is only a phone call away where your questions can be answered by one of our licensed family law attorneys.
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Law Office of Bryan Fagan | Tomball, Texas Divorce Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Tomball, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Tomball TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Tomball, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.