Mediation is an alternative dispute resolution process that has become a requirement in most family law cases. A mediator is a neutral third-party who helps facilitate the settlement negotiations between the parties. Generally, one party and that party’s attorney stay in one room; the other party and that party’s attorney stay in another room; and the mediator goes between the rooms. The parties can conclude the mediation with a Mediated Settlement Agreement (“MSA”). This is an irrevocable settlement agreement that is filed with the court. Either party can seek a final judgment on the MSA and have a decree or final order entered.
Can you mediate prior to filing for divorce?
Mediation most often occurs toward the end of a case. The parties may have been through one or more hearings; conducted extensive discovery; attended depositions; and were probably set for final trial. Can mediation occur prior to even filing a divorce petition? In October 2019, the Texas Supreme Court held in Highsmith v. Highsmith that a Mediated Settlement Agreement can be executed prior to the filing of petition for divorce. 587 S.W.3d 771 (Tex. 2019). The Texas legislature has stated: “It is the policy of this state to encourage the peaceable resolution of disputes . . . including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures.” Tex. Civ. Prac. & Rem. Code § 154.002. Pre-litigation mediation gives parties the opportunity to settle their issues even before filing their case with the court.
How does pre-litigation mediation work?
Mediation requires the willingness of two parties to submit themselves to the mediation process. To mediate before filing a divorce, both parties need to be onboard with attending mediation. This is not always easy at the start of a divorce. Emotions are high; there may be hurt feelings; and trust may be broken. One or both parties may also already have an attorney. If a party does have an attorney, the attorney can coordinate scheduling mediation. Case law does establish a third-party mediator must mediate in order to obtain a Mediated Settlement Agreement. You cannot obtain an MSA from the parties simply sitting down and writing out their agreement together. The parties must go through the mediation process with a mediator. The mediation can be scheduled for a half-day (4 hours); full day (8 hours); or sometimes by the hour depending on the mediator. If neither party is choosing to use an attorney, you can hire a family law mediator on your own.
What information do you need to prepare?
As with any divorce, it is important that the parties have a clear idea of their finances such as: 1) what accounts are community property?; 2) what assets are separate property?; 3) what debts are owed?; and 4) what personal property exists? A general inventory of assets and liabilities with corresponding account numbers will help ensure no property is overlooked during the division. The parties should also have an initial wish-list of the property division. The more information you have gathered prior to mediation, the more productive the mediation time will be.
Is pre-litigation mediation right for you?
Mediation is a series of movements. Party A starts with a position. Party B starts with a position. Sometimes the positions are close, and sometimes they’re not. The mediator helps the parties move off their starting positions and closer to an agreed upon settlement. Mediation, at its core, is a voluntary process though. The voluntariness and willingness of the parties to participate in dispute resolution is the key to a mediation’s success. This is especially true in pre-litigation mediation. Pre-litigation mediation asks parties to mediate before a legal case has even been filed with the court. Parties will most often attend pre-litigation mediation when they are close to settlement on their own but need some assistance finalizing details. Parties may also attend pre-litigation mediation when their estate is not complex or when they just don’t have the funds for a complex litigation. Parties can also attend mediation even when they’re nowhere close to an agreement, as long as both parties are willing to submit to the mediation process.
What happens after I get a Mediated Settlement Agreement?
When you reach a settlement and have a signed Mediated Settlement Agreement, your next step is to file for divorce. Again, if a party has an attorney, the attorney will handle the filing of the petition for divorce. The other party can sign a Waiver of Service meaning service of the petition is not necessary. A Final Decree of Divorce must then be drafted based on the Mediated Settlement Agreement. A judge will sign the decree once signed by all parties and filed with the court. It is important to remember that once an MSA is signed, you cannot wake up with buyer’s remorse the next day and revoke your agreement. The agreement in a signed MSA is the agreement on which the court will enter judgment.
Mediation is a powerful tool in the divorce process. Under the right circumstances, pre-litigation can be successful and save you time, money, and help you reach resolution in your divorce.