There’s Informal “Mediation”, and Then There’s Real Mediation

Mediation is a term we use in family law cases all the time.  Many, if not most, contested family law cases settle at mediation.  But when we discuss mediation, we mean the real mediation as described in the Texas Family Code.   No other “mediation” carries the same benefits or finality of a real mediation. 

Informal “Mediations”

Companies, individuals, and even religious organizations offer what they call “mediation” to settle divorces outside of the courts.  The alleged benefit of these “mediations” is extremely low cost.  Certainly, low cost is always attractive to folks facing a family law matter.  However, just like the ultra-cheap divorces promised on signs on the side of the road, there are risks with these informal “mediations”.  Real mediations cost money, but they more than pay for themselves.

Texas Community Property

Going back to Texas as its own Republic, Texas law has worked to protect the property interests of spouses in a divorce.  Texas community property laws ensure a fair division of the marital estate.  Real mediations comply with Texas law while informal “mediations” typically fail to consider the law.  How would a spouse know if a settlement is fair without knowing what the law provides? What would each spouse be entitled to under Texas community property laws? Informal “mediators” can’t advise on these questions because they don’t know.

A lawful mediation complies with Texas law.  Generally, each party has an attorney present. An attorney or former judge who knows the law serves as the mediator.  Anyone giving advice or making recommendations in a real mediation is competent to do so.  While some lawyers are better than others, any lawyer at a mediation will be versed in the law. Advising on the law is what lawyers do, after all.

Unlicensed Practice of Law

Practicing law without a license is against the law in Texas.  Giving legal advice without a law license violates the law.  Thus, if a non-lawyer advise people on how to divide marital property or how to design a parenting plan, he breaks the law.  The Texas Supreme Court provides committees to investigate and prosecute the Unlicensed Practice of Law (UPL).

Informal “mediators” violate Texas law by attempting to perform legal work for clients without a law license.  What is worse is the spouses believe informal “mediation” represents a legal solution to their divorce problem.  Without the force of law behind any informal agreement, nothing is actually settled.  Certainly, many informal “mediators” intend to help people. Unfortunately, their efforts are illegal and fail to conform to the law.

Mediation in The Texas Family Code

Real mediation is lawful, and it yields an irrevocable settlement.  The Texas Supreme Court ruled that a Mediated Settlement Agreement (MSA) represents a final agreement.  An MSA cannot be undone once it is signed by the parties.  Consequently, settling a real mediation gives finality to a case.  There can be no “buyer’s remorse” the following day, no reneging on the deal, and no second bite at the apple.  The MSA binds the parties, and the Courts honor the terms of the MSA.

Once an MSA is signed by the parties, one of the attorneys in the case will draft a final order that comports with the MSA.  When the court enters that order, the case is over. Many courts require the MSA to be filed with the clerk.  Once filed, the court often sets a deadline on getting the final decree entered.  Thus, and MSA also sometimes helps establish an end date to the divorce.

No informal “mediation” offers the finality of a lawful mediation.  Without the force of law behind them, these informal “mediations” produce nothing the court can use.  At best, informal “mediations” waste time and money for the spouses.  At worst, they cause a party irreparable damage to one or both parties.  Either way, the divorce is not finished until a court enters a final decree.   But the court lacks authority to enforce the terms of an informal settlement.  Likewise, the court has no duty to respect an agreement that is a product of the unlicensed practice of law.

Recommendation

We strongly recommend avoiding informal “mediations”.  They fail to comply with Texas family law. The “mediators”, while likely full of good intentions, break the law and subject themselves to prosecution by the UPL committee.  Certainly, these informal “mediators” won’t stand behind any agreement they help build if they face criminal prosecution.

If you are facing a divorce, hire a lawyer.  Your lawyer will prepare for a real mediation.  A lawful mediation yields finality in a family law case.  Ergo, knowledge of the law and significant preparation are required.  A competent lawyer prepares for mediation.  He or she will also advise the client on legal matters as no informal “mediator” can do. Lawful mediation settles cases without the cost of final trial, so they are worth every penny.

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Our Firm

Youngblood Law, PLLC is a Fort Worth, Texas family law firm focusing on helping people get on with their new life by getting done with their old life.  This essay is intended for educational use only and is not a replacement for competent legal counsel.  If you are facing a family law matter, we recommend obtaining competent legal counsel like Youngblood Law, PLLC.  For more information contact us at 817-601-5345, find us on the web at www.youngblood-law.com.

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