A mediated settlement agreement is the bedrock of the mediation process in Texas family law. Any agreements arrived at by you and your opposing party are memorialized in the mediated settlement agreement. However, a Mediated Settlement Agreement is not a binding court order. A judge will not simply sign off on the mediated settlement agreement in and of itself. Rather, you and your opposing party must create a court order out of any settlement agreements created.
With that said, the mediated settlement agreement is still extremely important. It goes without saying that for people who are going through a family law case mediation is a breath of fresh air. Instead of being forced to withstand months of continued court appearances, a family can settle their case in mediation. However, with this opportunity comes a great deal of planning and effort. Mediation offers a way to settle your case. However, settlement agreements do not fall out of the sky magically.
Rather, you and your family must prepare for mediation diligently. This is where the attorneys with the Law Office of Bryan Fagan can help. Our experienced family law attorneys understand the importance of mediation agreements. From drafting court orders to resolving family law cases mediation is a tremendous tool. Today’s blog post focuses on this subject as well as how your family stands to benefit as a result.
What is mediation?
In short, mediation is a formalized settlement conference for you and your opposing party. This opportunity comes typically at the office of a third-party mediator. This is the person who is not formally involved in your case. However, the mediator acts as a communicator of settlement offers. Additionally, the mediator provides context and perspective beyond the parties and their attorneys. In short, the mediator plays a vital role in resolving disputes and assisting in the negotiation process.
Mediation can occur virtually. This happens during times of pandemic such as we just went through. Or it occurs when one party is simply unable to attend in person. However, most mediation opportunities occur in person. Usually, mediation takes place at the office of the mediator. You are in one room in the office. Your spouse or co-parent is in another room. From there the mediator acts as a ping-pong ball bouncing back and forth between each of your rooms. Mediation sessions can last for half a day and up to a full day.
In most family courts in Texas mediation is required before a temporary orders hearing as well as a trial. In some circumstances, judges will often order parties to attend mediation more than once if a settlement cannot be reached on the first go around. With so much at stake in mediation having an experienced family law attorney helps a great deal. Being prepared for mediation means taking advantage of every opportunity to settle your case.
What goes into a mediated settlement agreement?
One of the most difficult parts of preparing for mediation is not knowing what to expect. We have all been in scenarios where we go through something for the first time. It does not feel comfortable. However, the worst part is the fear of the unknown. Not knowing what to expect in family law mediation is uncomfortable. However, with more information, you can gain comfort. This is where today’s blog post comes into play.
The Law Office of Bryan Fagan can think of no better way to prepare you for mediation than to provide you with an overview of a typical mediated settlement agreement. In a family law case, these are the factors that are most frequently negotiated. While every mediation looks different you should expect something close to this in your mediation.
With this understanding, prepare diligently for your mediation date. The opportunity to settle your case does not present itself every day. Rather, you have limited opportunities to take advantage of. Your opposing party and your focusing your attention solely on this legal matter has the potential to yield great results. Having mediation available to you has the potential to provide you with a great deal of benefits both now and in the future.
The basics of a mediated settlement agreement
A mediated settlement agreement will tell you in no uncertain terms that the document is binding legally. This means that it is irrevocable and cannot be taken back in the future. The last thing a mediator wants you to think is that you can follow up the next day and retract any agreement you came to. Rather, all settlements reached in mediation are binding upon the parties. The agreement will be enforceable as a contract. Additionally, unless otherwise stated all components of the mediated settlement agreement are contained in that document itself.
On top of that, the mediator will certify that the mediated settlement agreement is reached without any type of fraud or duress. This means that you and your opposing party reached the settlement agreements without being forced into an agreement. The mediator is there to facilitate settlement discussion but is not an attorney for either party. While the mediator will discuss with you the facts and circumstances in every case he or she does not provide you with legal advice during mediation.
The mediated settlement agreement states the type of settlement reached by you and your opposing party. In some circumstances, a full settlement on all issues is reached. This is an ideal situation. No contested court hearings are necessary. All issues negotiated upon were settled by the parties in mediation. However, partial and/or temporary settlement agreements are also possible. For clarity’s sake, this becomes a part of the mediation agreement. Speak with your attention about the consequences of entering into a mediated settlement agreement before signing.
Outside promises are not valid
The mediated settlement agreement seeks to be able to settle all issues in your case. To do so, you must consider that there are a wide range of issues facing you and your opposing party. It is also assumed that the two of you may have had additional negotiation sessions informally. To ensure that neither of you rely upon any prior negotiation session the mediated settlement agreement specifies that it contains all the settlements relevant to your case. Neither you nor your opposing party should rely upon any other negotiations engaged in before mediation.
The final decree of divorce and your mediated settlement agreement
In a divorce scenario, what you and your spouse care about is the final decree of divorce. The final decree of divorce contains all the settlement agreements or court orders for your case. While mediation is important it is the final order that becomes enforceable. As a result, spending time paying attention to the details of this component of your case is critical. Much of the time spent in mediation is built up to ensuring that the settlement agreement correctly makes up part of any final decree of divorce that is drafted.
If you and your spouse can reach a mediated settlement agreement then the court must enter a judgment based on that agreement. Three requirements must be met for the document to be drafted as binding. We have already covered the first of those components. That is, the document must state that it is not subject to revocation. It still happens from time to time, however, parties will contact the attorney after mediation to ask if the document can be changed or otherwise altered. The reality is that it is not possible in most situations.
Next, you and your spouse must both sign the agreement. If it is not signed by both of you then the document will not be held up as a proper settlement of the issues in your case. With that said, please make sure that all documents are initialed and signed within the mediated settlement agreement. Go through each page with your attorney and make sure both you and your spouse have signed where necessary and initialed where necessary. This kind of attention to detail matters to you and it should matter to your attorney.
Family violence as an exception to the enforceability of a mediated settlement agreement
The major exception to the general rule that a mediated settlement agreement is not revocable has to do with family violence as an issue related to the case. The Texas family code states that if you were a victim of family violence then this may be a circumstance where the mediated settlement agreement is not necessarily enforceable. Specifically, if a judge finds that your ability to make decisions has been impaired due to the violence then the agreement is not necessarily enforceable. This is specifically true when agreements made are not in the best interests of your child.
However, in most situations, a mediated settlement agreement must not be deviated from by either party or the court. By signing the mediated settlement agreement, you are entitled to a judgment from the court based on everything contained in that agreement. In some situations, a court needs to insert certain terms into your court orders which make it possible to follow through with your court orders. Other than things like this the Final Decree of Divorce cannot differ in substance from the mediated settlement agreement.
This sounds great in theory, but I think that it is important to illustrate this point with a hypothetical situation that may be close to what you have gone through in your experience of a divorce. We will take up a situation where you are a father who has gone through a divorce case. In that divorce case, you challenge a final decree of divorce that was entered by the court. Your reason for challenging the final decree of divorce was that it does not closely resemble the mediated settlement agreement in your case.
Challenging a mediated settlement agreement
After a lengthy marriage, the two parents in our hypothetical situation are going through a divorce. The couple has two children from the marriage. A separation occurred in 2023 and a mediated settlement agreement was signed in March 2024. Under the terms of the mediated settlement agreement, both parents become joint managing conservators of the children. The mother has the right to determine the primary residence of the children. All of this is standard in Texas. Joint managing conservatorships are the norm in a custody scenario. Mothers are often the primary conservators in this arrangement.
From there, the father has a standard possession order so long as he lives within 50 miles of the children. The parties were to exchange their children at a neutral location. This was done because Mom lives in The Woodlands while Dad lives in League City. During a hearing to enter final orders, the two parties disagreed on how to implement this pick-up and drop-off location. Mom argued that Dad was responsible for all pick-up and drop-off to and from her residence throughout the month. It was only for holidays that the parties would meet in the middle. However, Dad reads the mediated settlement agreement more literally.
Dad wins the day in arguing against a poorly drafted final decree of divorce
Simply put, the father here argues that the court cannot enter the final decree of divorce as currently drafted. The reason is that the order differs in large part from the mediated settlement agreement. For starters, the dad is doing the right thing here. You should not sign a document unless you have thoroughly read and examined it. On top of that, do not agree to sign anything unless it matches up with any of the guiding documents in your case. For today’s discussion, we are talking about a mediated settlement agreement. Therefore, the final decree of divorce should match up with the mediated settlement agreement in large part.
In this situation, it appears that the final decree of divorce changes the terms of the mediated settlement agreement. the mediated settlement agreement states the parties perform pickup and drop off at a neutral location in between their homes. On the other hand, the final decree of divorce states that this only occurs for the holiday visitation period otherwise, Dad is responsible for all transportation. This is a major change in places a great deal of responsibility on the father’s shoulders.
How a court interprets A mediated Settlement agreement
Texas courts should apply standard methods of analyzing contracts when viewing A mediated settlement agreement. This means looking at the plain language of the mediated settlement agreement. When doing this it becomes clear that the language and the mediated settlement agreement must be tracked closely when compared to the final decree of divorce. A divorce court does not have the authority to deviate from the substance and language in the mediated settlement agreement.
Therefore, it is unreasonable to think that a court will do so in your situation, either. This means two things for you on a practical level. One, it means that you should expect that what you see in mediation is what you will get after your divorce. Do not go into mediation with the presumption that your spouse will be able to talk their way out of the settlement agreement. Many people encountered these sorts of fears and mediation. However, the law favors the enforceability of a mediated settlement agreement.
At the same time, you should not presume that a court will save you from yourself when it comes to the mediated settlement agreement. Rather, courts are much more likely to follow every word of your mediated settlement agreement. Therefore, be careful what you agree to in the language contained in the agreement. It is more than likely that this is the substance that will go into your final decree of divorce.
Final thoughts on mediated settlement agreements
All family law cases are unique. Your family has its circumstances that cannot necessarily be compared to those of any other family. However, there is one thing that is consistent across all cases involving mediation. That is the mediated settlement agreement will be followed by the court nearly 100% of the time. This is the norm for a family law case and should be expected to be followed through in your case.
On a practical level, having an experienced attorney guide you through the mediation process is essential. Do not assume that this is something that you can make corrections on in the future. Rather, having an attorney with you in mediation means allowing yourself to settle your case and move on with the rest of your life. The attorneys with the Law Office of Bryan Fagan thank you for your time. We hope you enjoyed our blog today. We post unique and interesting blogs each day of the week.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. Interested in learning more about how your family is impacted by the material in this blog post? Contact us today.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
