Mediation is an alternative dispute resolution process where parties go to solve their case outside of the courtroom. At mediation, two parties negotiate through a mediator, a third party who does not represent either party. When the parties reach a settlement agreement on their issues, they enter into a Mediated Settlement Agreement. A Mediated Settlement Agreement (or MSA for short) is the binding, final, and irrevocable contract parties to a lawsuit sign once they have settled their issues.
In most cases, mediation is a great way to resolve issues outside of the courtroom and without the court’s interference. At mediation, parties get to negotiate and build their own terms for agreement of their issues. Parties have complete control over the resolutions for their case, so long as they agree.
In the courtroom, a Judge is bound to follow the law. At mediation, parties can enter into agreements that differ from the law. Texas family courts do not have the ability to change a Mediated Settlement Agreement once it has been signed by all parties and their attorneys.
Mediated Settlement Agreements in family law were created with the intent to honor party’s agreements. The Texas Legislature wants to honor agreements between parties and reward them for settling their disputes outside of Court. In doing so, the Texas Legislature makes a signed Mediated Settlement Agreement final, binding, and irrevocable. This means that once a Mediated Settlement Agreement is signed, the agreements contained therein are confirmed and set in stone. No additional agreements may be added, taken away or changed.
If parties enter into a settlement agreement that is not confirmed in a Mediated Settlement Agreement, the Court must look at the agreement with two eyes – a Procedural Eye and Legal Eye.
When parties enter into a Mediated Settlement Agreement, the Legal Eye is knocked out. The Court cannot look at the agreement with a Legal Eye. Why? Because the parties have decided, on their own, what is in the Best Interest of the Child or a Just and Right Division of their property. The Judge cannot change the agreements made in a Mediated Settlement Agreement. The Judge cannot add provisions to a Mediated Settlement Agreement. If a Mediated Settlement Agreement forgets a term or an agreement, there is no going back to add that agreement. It is incredibly important to read and re-read a Mediated Settlement Agreement before signing. It an agreement is omitted or wrongly stated, it cannot be fixed in the future.
To obtain a Mediated Settlement Agreement, the parties must attend mediation. In a family law mediation, the parties are placed in separate rooms with their respective attorney. A mediator, a person who is a third party who does not represent either party to the lawsuit, goes back and forth between the two rooms to help the parties reach an agreement.
If the parties reach an agreement amongst themselves, their agreement is confirmed into writing. Thus, a Mediated Settlement Agreement is created. The Mediated Settlement Agreement contains all the terms of the parties’ agreements.
In a divorce case, a Mediated Settlement Agreement will contain agreements for property division and children’s issues, if there were children born during the marriage. In a suit-affecting the parent-child relationship or a modification of the parent-child relationship, the Mediated Settlement Agreement will contain all agreements related to the children.
In family law cases, parties may enter a Temporary MSA or Final MSA. If a case is contested, parties will likely enter a Temporary MSA to provide them with orders during the pendency of the case. The agreements contained in a Temporary MSA last until a Final MSA is procured or until the Judge makes a final order at trial. If parties go to mediation and obtain a Final MSA, the agreement contained in the MSA resolves all the issues in the case.
If you entered into a Mediated Settlement Agreement, it is almost impossible to get out of your agreement afterwards. The only times a party could back out of a Mediated Settlement Agreement is if there is fraud or duress. A Mediated Settlement Agreement can’t be set aside because a party no longer wishes to be bound by the terms or because a party wants to add more terms.
If you find yourself in this situation, you want to ensure that you contact a knowledgeable attorney to discuss your case.
