In an initial consultation with a prospective client one of the things that gets discussed is Mediation. In nearly every family law matter, mediation is a requirement before the case can be finalized so it is essential to discuss it in that consultation. What gets discussed during mediation is the fact that a mediated settlement agreement is binding and irrevocable. I give a speech to my client every time we attend mediation to make sure my client understands that once he/she signs I cannot undo this agreement and that an Order will get entered based on this agreement. This is beneficial for all parties to the case because they know that once an agreement is reached it cannot be undone. It provides some sense of finality to the issue, even though the lawyers still have to draft the final documents to submit to the Court.

What inevitably happens to many attorneys, myself included, is that clients will call us a day, a week, even a month later and no longer want to have the agreements they reached in mediation. Unfortunately for these clients there are so few limited circumstances to set aside a mediated settlement agreement, that the lawyers often times cannot do anything about it. It has been tried in a few cases and the Texas Supreme Court has ruled that the Judge cannot even set it aside when the Judge does not believe it is in the best interest of the child. The Texas Supreme Court has also ruled that the parties cannot even agree to set aside a mediated settlement agreement. The reason for this is, as stated above, it provides the parties with a sense of finality. The parties know what the terms are, even though the final order has not been submitted to the Court. The parties know that neither of them can later change their minds.

If the mediated settlement agreements were not binding and irrevocable the parties would lose faith in the process because they would know that the other party just has to have a change of heart and suddenly they are in a trial. The most important part about mediation in family law cases is that it is the parties who decide what is best for their case. They work through a mediator to determine what is best for their children, how to divide property, child support, and many other ancillary issues. If these agreements could just be set aside because one party no longer likes the terms then it is left to a Judge to decide what the Judge thinks is best.

While I am a strong advocate of mediation because I believe it is better when people can reach their own agreements rather than a Judge deciding, I also want my clients to understand the finality of these agreements. So, talk to your attorney about mediation and what the end result is of any agreements you may enter into. It not only affects you, but your family, and you need to be certain that this is an agreement that will work for all.

Categories: Divorce

1 Comment

carey johnson · March 19, 2019 at 1:02 pm

After the MSA is signed and the mediator enters it into the county clerks office, how can the drafting parties attorney never file it or show for prove up hearing?
Where does this leave the parties?

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