Meditation and the Mediated Settlement Agreement

The following is provided for informational purposes only and is not, nor should it be construed as legal advice.

Mediation is an alternative to litigation that allows the parties in a lawsuit to maintain control of their future. The State of Texas has recognized that mediation is a valuable process. In fact, §154.002 of the Texas Civil Practice & Remedies Code states, “It is the policy of this state to encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary procedures.” Mediation is a required process in most contested family law cases in Harris and Montgomery Counties. In some situations, a case may be mediated before temporary orders are issued and again prior to a final order being entered. Many, if not most, family law matters can be successfully resolved through mediation without resorting to trial before a judge.

Mediation is a process in which an impartial person, the mediator, works with the parties to establish communication between the parties to promote a settlement or compromise of the issues. In the typical family law mediation, the mediator is a licensed attorney with substantial experience in handling family law cases. Many times, the parties and their attorneys select the mediator for their case. The parties, with their respective attorneys, are placed in separate conference rooms. The mediator moves between the two rooms discussing the facts and issues with each side and working to help each side recognize the strengths and weakness of their position. Many times the mediator serves as a “reality check.” The mediator refrains from telling the parties what to do but instead guides the parties in discussions which are intended to lead to compromise and settlement. Mediation focuses on the future and what can be done to preserve long-term relationships. There are no hard and fast rules for the mediation process. The mediator will assist the parties in deciding what the issues are, exploring possible solutions and deciding which solutions will work best. Mediation allows the parties to retain control of their case and resolve their case utilizing flexibility and creativity. The flexibility of the mediation process allows the mediator and the parties to find the most effective and efficient method to resolve the conflict. The solution is determined by the parties and their attorneys, not the mediator.

Once the parties have reached an agreement, the mediator prepares a document known as a mediated settlement agreement or “MSA.” A mediated settlement agreement that complies with Texas law is binding on the parties and cannot be revoked. Recent Texas Supreme Court decisions stress that a mediated settlement agreement that complies with Texas law must be honored and that neither party can change their mind.

The benefits of mediating a family law matter are many. The parties maintain control of their future. A mediated settlement agreement results in a predictable outcome. Any agreement reached is an agreement both parties have created and approved. Mediation is a win-win process based upon compromise. Mediation does not require the parties to attack each other. This is particularly important in cases involving children where parents will need to be able to co-parent their children and where the parties will continue to interact with each other forever through their children and grandchildren. Mediated agreements tend to have a higher rate of compliance than court-ordered agreements resulting from contested trials. Mediated settlement agreements are customized to the parties’ needs and circumstances. Mediation also avoids the trauma and additional expenses of trial.

Mediation is an excellent way to resolve family law cases with the assistance of your attorney and a qualified mediator. Many high conflict cases I thought would never settle have been successfully resolved through the mediation process.

© 2018 Randy R. Rowney

Randy R. Rowney is a certified mediator through the University of Houston Law Center, Blakely Advocacy Institute. He is admitted to practice before all Texas as well as the Federal Courts for the Southern District of Texas and has been practicing family law since 1983.  Mr. Rowney is a member of the law firm, Currin, Wuest, Mielke, Paul & Knapp, PLLC (“CWMPK”) located at 800 Rockmead Drive, Kingwood, Texas.   In addition to the areas in which Mr. Rowney practices, other attorneys at CWMPK concentrate their practice in areas of civil and commercial litigation, estate planning, probate, family law (including divorce and custody issues), business operations and formation, bankruptcy, construction law and real estate.  For more information, please call 281.359.0100 or see the CWMPK website at www.cwmpk.com.