Jul 11, 2022

Explaining Mediation in Texas Family Law Courts

Almost all Texas Family Law cases go to mediation at some point during the life of a case. Most litigants agree to mediate but even if they do not, almost all Family Courts require mediation or severely limit your trial time if you decline it.

What is Mediation?

“Mediation” is a statutorily created settlement negotiation conference which both parties and their attorneys attend. (Generally, Mediators exclude anyone other than the party and his or her attorney, but a party may call someone for advice at times the mediator is with the other party.) 

Why Should I Mediate?

First, remember you are likely required to attend mediation. 

But if you are not required to mediate, you will decide whether to mediate in consultation with your attorney as you both review the issues, the facts, your goals, your budget, your expectations, your timeline, etc. 

And it may be you just WANT to go to trial instead of settling. Which is your prerogative.

But if you choose to mediate, even though Mediation is expensive, know that most mediators have about a 80-90% success rate of settling cases and, if settled, this is substantially less expense than if the case proceeds to contested hearing or final trial. Because both sides have invested so much in the process, it usually is successful. But no attorney can predict with certainty the outcome of your mediation.

Of course, the downside is that it is always possible a case does not settle in mediation, in which case a client has paid for mediation but must then also incur the expense of proceeding to trial. 

How Does Mediation Work?

Each party and their attorney sit in a room apart from the other party and their attorney, although sometimes Mediator privately confers with the attorneys on certain sticking points.

 The Mediator then goes back and forth between the two rooms, conveying settlement offers, making recommendations, cajoling, persuading, etc. The case is negotiated until an agreement is reached or the parties have reached an impasse.  

If agreement is reached, it is reduced to writing by the Mediator as a “Mediated Settlement Agreement” (“MSA”) which is reviewed by the attorneys and clients to be sure it accurately reflects the verbal agreements reached.  Note that the MSA is NOT in and of itself the final order and is usually written in an abbreviated format. 

If and once the MSA signed by all the parties, attorneys, and mediator, it is binding and irrevocable. (This is very important as almost all other forms of agreement can be revoked.) 

On the other hand, if an agreement is not reached, the mediator simply sends a letter to the Court that the case did not settle. The mediator cannot later be called as a witness. Everything is privileged.

Who Is the Mediator?

The Mediator has either been selected by agreement of the parties’ attorneys or appointed by a Judge. He or she is either a very experienced Family Law attorney or former Family Law judge who has taken special training in mediation. In some counties, there are occasionally agencies who provide low-cost mediation services but they are few and far between. It varies by County. (For many years, Dallas and Ft. Worth both had low-cost dispute resolution agencies but they no longer exist. The only county known at this time to provide such services is Denton County.)

How Long Does Mediation Last?

Mediations are conducted by Zoom or in person, usually the latter unless someone resides out of the area or due to pandemic. They are scheduled for “Half Days”, which usually last 5-6 hours, or for “Full Days” usually lasting 8-10 hours.

Where Does Mediation Happen?

It can be at the Mediator’s Office or in one of the party’s attorney’s offices unless by Zoom videoconference. 

What Does Mediation Cost?

Private Mediators’ fees vary somewhat but generally are charging about $600 per party for half days and about $1,000-$1,500 or so for a full day. If you go to some agency to mediate, it usually offers mediation at a greatly discounted rate but is not free. 

In most cases, each party pays 50% of the Mediator’s fees. 

Remember, however, what a client pays the mediator is in addition to what he or she pays their own attorney to attend mediation with the client. 

What If the Other Side Does NOT Want to Mediate?

If the other side does not want to mediate, we can file a Motion for Mediation and get the judge to order it, if the judge will do so and most will.

The problem is, if that party doesn’t want to attend mediation, it may be a waste of time and money to force them to attend. Even then, though, I have seen this scenario many times and the cases still often end up settling.

Should I Mediate Without My Attorney?

If you have children or any property beyond household furnishings you definitely should not mediate your case without an attorney, because your attorney can and will:

  • Tell you which mediators are recommended and best for your case;
  • Let you know whether you should mediate for a half or full day;
  • Advise you of the substantive law governing the issues of your case; 
  • Tell you about the tendencies of your Judge and opposing counsel should you go to trial; 
  • Give an expert opinion regarding whether the offer from the other side is as good as or better than you would probably achieve in trial;
  • Explain how to implement and help you implement the terms of the agreement;
  • Inform you about the process of drafting a Final Order based on the MSA, getting the order entered by the Court, etc., to finalize the case; 
  • Inform you of the cost of proceeding to trial vs settling the case in mediation; and
  • Advise you regarding the wording of the MSA to ensure it correctly reflects the substantive terms of the agreement. 

At What Juncture in My Case Should I Mediate?

You can mediate at the beginning of your case or near the end or anytime in between. At which juncture should you mediate in your case?

Sometimes mediating at the beginning of the case is a good decision. The parties may have already talked and narrowed the issues or at least both are interested in good faith negotiations to arrive at an amicable solution as early in the case as possible. If successful, it will save you from the litigation expenses you otherwise would usually incur. However, the negative aspect of mediating early is that it is before discovery has been done, before a child custody evaluation, etc., so neither the attorneys nor the mediator are able to predict with much confidence how the case will turn out if it goes to trial. 

The opposite approach is to wait and mediate just before trial. Contrary to the early mediation, you will have spent a large sum of money during the pendency of the case in temporary hearings, written discovery, document review, depositions, evaluations, etc., to get to that point in your case. The good thing about mediating at the end of the case, though, is that by then, all the facts are known, all the witnesses are known, all the documents and evidence have been reviewed, the evaluations are finished and recommendations made, etc., so the attorneys and mediator can almost always predict what the result would be in trial and convince the parties to accept the predicted outcome. 

Should I Settle in Mediation?

You should generally consider several factors as you mull over the offer from the opposing party- the expense and duration of continued litigation, whether it appears you could achieve a better result of you proceed to trial, the emotional toll on you and your family, the financial effect on your business or employment, and other factors.  The Mediator will try to persuade both parties to make compromises and will tell each party the strengths and weaknesses of his or her case. Some attorneys are very forceful about almost making the decision for the client. 

But in the end, it is entirely up to you –you do NOT have to settle your case. Your attorney and the mediator may make recommendations and give you advice, but in the end, it is your decision. My job is to advise you, not make the decision for you unless you direct me to do so.  

What Happens After Mediation?

If your case settles, congratulations, you are almost at the end of your case! But signing an MSA is NOT the end of the matter. 

One of the other lawyers then will draft a Final Decree of Divorce or other Final Order based on the MSA for the judge to sign and circulate it for review and approval by all counsel and clients. For example, a 4-5 page MSA usually results in a final order that is 35-60 pages long.

Sometimes there are disagreements about the wording of the proposed final order that require the attorneys to have the Mediator or the Judge resolve. Depending on the type of your case and the court your case is in, one party or the other may have to make a brief appearance before the Judge and give short testimony supporting the Final Order. Often closing documents or retirement plan transfers take place. 

Is Mediation the ONLY Way to Negotiate an Agreement?

No. There are several ways to negotiate and several ways to record and preserve an agreement. You can settle in mediation or before or after mediation. But mediation is almost always the best method of settlement. 

There are only three ways to make an agreement binding and irrevocable in Texas:

  • MSA;
  • Informal Settlement Agreement (but only in a divorce case); or
  • An agreement announced and dictated on the record in court before a judge and the judge “renders judgment” approving the agreement and making it the order of the court. This must occur with a court reporter present or the judge must make a detailed docket entry to that effect. 

You may hear of attorneys using Rule 11 Agreements which have some use but they are not binding unless pronounces it is.

Does My Attorney Want to Settle or Will He Go to Trial with Me?

This is an important question to resolve with your lawyer. There are many lawyers who do not want to go to trial. Some do, some don’t. 

At the Family Law Team of Cotten Schmidt, LLP, we are firm believers in doing as our client directs. If the client wants to go to trial, judge or jury, our team is ready