Most Texas Family Law Cases Settle Through Mediation

If you are involved in a divorce or child custody case, there is a very good chance that your case will go through mediation before it ever reaches trial.

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Mediation is a confidential settlement process in which a neutral third party, known as a mediator, assists the parties in negotiating a voluntary resolution of their dispute. Unlike a judge, the mediator does not decide who wins or loses the case and does not impose a decision on either party. Instead, the mediator helps the parties identify areas of agreement, narrow disputed issues, and explore potential solutions.

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Texas courts strongly encourage the use of mediation because it often allows families to resolve disputes more quickly, less expensively, and with greater flexibility than a contested trial.

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Texas Law Expressly Encourages Mediation

The Texas Legislature has specifically authorized courts to refer family law disputes to mediation.

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Section 154.002 of the Texas Civil Practice and Remedies Code declares it to be the policy of Texas to encourage the peaceable resolution of disputes through alternative dispute resolution procedures, including mediation. The statute recognizes that negotiated settlements can reduce the emotional and financial costs of litigation while promoting the early resolution of disputes.

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In family law cases, Texas Family Code § 153.0071 specifically governs mediated settlement agreements involving conservatorship, possession, and access to children. The statute provides the framework for when a mediated settlement agreement becomes binding and enforceable.

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What Happens During Mediation?

Mediation is not a courtroom proceeding.

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Instead, the parties usually meet at the mediator's office or participate remotely through a secure video conference. Each party is typically represented by counsel, although self-represented parties may also participate.

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Rather than sitting together for the entire session, the parties are often placed in separate rooms while the mediator moves between them carrying settlement offers, discussing legal and practical considerations, and helping evaluate possible compromises.

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The mediator's role is to facilitate communication—not to decide the case.

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Throughout the process, the parties remain in control of whether to accept or reject any proposed settlement.

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Is Mediation Confidential?

Yes.

Texas law provides substantial protections for the confidentiality of mediation communications. Statements made during mediation are generally confidential and are not admissible in court to prove liability or the validity of a claim. See Tex. Civ. Prac. & Rem. Code Chapter 154.

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This confidentiality encourages candid discussions and allows the parties to negotiate freely without concern that settlement discussions will later be used against them at trial.

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Because of these protections, settlement offers made during mediation generally cannot be introduced into evidence if negotiations are unsuccessful.

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What Is a Mediated Settlement Agreement?

If the parties reach an agreement, they typically sign a Mediated Settlement Agreement (MSA) before leaving mediation.

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Under Tex. Fam. Code § 153.0071(d), an MSA involving conservatorship or possession is generally binding if it prominently states that it is not subject to revocation, is signed by each party, and is signed by each party's attorney if an attorney is present at the time the agreement is executed.

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Once those statutory requirements are satisfied, a party ordinarily cannot simply change his or her mind after leaving mediation.

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The Texas Supreme Court has repeatedly recognized the strong public policy favoring enforcement of properly executed mediated settlement agreements. In In re Lee, 411 S.W.3d 445 (Tex. 2013), the Court reaffirmed that trial courts generally must enforce a compliant MSA absent a recognized statutory exception. Likewise, in Milner v. Milner, 361 S.W.3d 615 (Tex. 2012), the Court emphasized that mediated settlement agreements satisfying the statutory requirements are ordinarily binding and enforceable.

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Can a Judge Reject a Mediated Settlement Agreement?

In most cases, a properly executed MSA must be enforced.

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However, the Texas Family Code recognizes a narrow exception in cases involving family violence. Under Tex. Fam. Code § 153.0071(e-1), a court may decline to enter judgment on an MSA concerning children if the statutory requirements are satisfied, including a finding that a party to the agreement was a victim of family violence that impaired the party's ability to make decisions and that the agreement is not in the child's best interest.

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Outside these limited statutory circumstances, Texas courts generally enforce valid mediated settlement agreements.

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Is Mediation Required?

Many Texas courts require mediation before scheduling a final trial.

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Even when mediation is not mandated by statute, judges frequently order the parties to mediate because experience has shown that many cases settle once both sides have exchanged information through discovery and had an opportunity to evaluate the strengths and weaknesses of their positions.

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Requiring mediation also conserves judicial resources by reducing the number of cases that must be tried.

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Why Is Mediation Often Better Than Trial?

A trial places the outcome in the hands of a judge.

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Mediation allows the parties to retain control over the result.

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The parties can craft creative solutions that a court may not have authority to order, structure parenting schedules around their children's specific needs, address unique financial concerns, and resolve issues that might otherwise remain sources of future conflict.

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Mediation also tends to reduce litigation costs, shorten the overall length of the case, and lessen the emotional strain that accompanies contested courtroom proceedings.

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For these reasons, the overwhelming majority of Texas family law cases are resolved through negotiated settlement rather than trial.

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Do I Still Need a Lawyer at Mediation?

Absolutely.

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Although the mediator is neutral, the mediator does not represent either party and cannot provide legal advice.

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Your attorney's role is to explain your legal rights, evaluate settlement proposals, advise you regarding the strengths and weaknesses of your case, and ensure that any agreement accurately reflects your intentions.

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Because a properly executed mediated settlement agreement is often immediately binding, it is important to fully understand the legal consequences before signing.

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Fergus & Tomanka Represents Clients at Mediation Throughout Central Texas

Mediation is one of the most important stages of a Texas family law case. Careful preparation, a thorough understanding of the facts, and knowledgeable legal advice can make the difference between a successful settlement and unnecessary litigation.

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At Fergus & Tomanka, we prepare every mediation as if the case will ultimately proceed to trial. That preparation often strengthens our clients' negotiating positions and helps them reach informed settlements that protect their property, their parental rights, and their children's best interests.