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Additional Considerations In Mediation and Arbitration

Notification and objection

The Court may, on its own motion or that of a party, refer a pending dispute for resolution by one of various alternative dispute resolution procedures. The Court shall confer with the parties in determining the most appropriate alternative dispute resolution procedure. Texas Civil Practices and Remedy Code Ann. §154.021. 

If the Court determines that a pending dispute is appropriate for referral, the Court shall notify the parties of its determination. Any party may file a written objection to the referral within ten days of receiving the notice. If the Court finds that there is a reasonable basis for the objection, the Court may not refer the dispute. Texas Civil Practices and Remedy Code §154.022. 

On written agreement of the parties or the Court’s own motion, the Court may refer a case to mediation. Texas Family Code Ann.§6.602(a), 153.0071(c). 

At any time before the final mediation order, a party may file a written objection to the referral of a case to mediation on the basis that family violence has been committed against the objecting party by the other party (in a suit for dissolution of marriage) or by another party against the objecting party or a child who is the subject of the suit (in a suit affecting the parent-child relationship). After an objection is filed, the suit may not be referred to mediation unless, on the request of the other party (dissolution suit) or of a party (suit affecting the parent-child relationship), a hearing is held, and the Court finds that a preponderance of the evidence does not support the objection. If the suit is referred to mediation, the Court shall order that appropriate measures be taken to insure the physical and emotional safety of the party who filed the objection. The Order shall provide that the parties not be required to have face-to-face contact and that the parties be placed in separate rooms during mediation. Texas Family Code §6.602(b), 153.0071(f). The provisions do not apply to suits filed under Code Chapter 262. Texas Family Code §153.0071(f). 



Arbitration and Mediation Agreements

The Texas Family Code, in sections 6.601 (arbitration) - 6.602 (mediation) and 153.0071 (alternate dispute resolution), sets out certain procedures concerning alternative dispute resolution that apply to all cases under Title 1 and Title 5 of the Code.

Arbitration
On written agreement of the parties, the Court may refer a case to arbitration. The agreement must state whether the arbitration is binding or non-binding. Texas Family Code Ann. §6.601(a) and §153.0071(a). 

If the parties to the suit for dissolution of the marriage agree to binding arbitration, the Court shall render an order reflecting the arbitrator’s award. Texas Family Code §6.601(b).  If the parties to a suit affecting the parent-child relationship agree to binding arbitration, the Court shall render an order reflecting the arbitrator’s award unless the Court determines at a non-jury hearing that the agreement is not in the child’s best interest. The burden of proof is on the party seeking to avoid rendition of the order based on the arbitrator’s award. Texas Family Code §153.0071(b)(Supp. 2001).

Mediation
On written agreement of the parties or on the Court’s own motion, the Court may refer a case to mediation. Texas Family Code §§6.602(a), 153.0071(c). 

A mediated settlement agreement is binding on the parties if the agreement provides, in a prominently displayed statement that is in bold-faced type or in capital letters or underlined, that the agreement is not subject to revocation; if it is signed by each party to the agreement; and if it is signed by the party’s attorney, if any, who is present when the agreement is signed. Texas Family Code §§6.602(b), 153.0071(d). 

If a mediated settlement agreement meets these requirements, a party is entitled to judgment on the mediated settlement agreement notwithstanding rule 11 of the Texas Rules of Civil Procedure or another rule of law. Texas Family Code §§6.602(c), 153.0071(e).

If the mediated settlement agreement does not satisfy the Code criteria for entry of a judgment is revoked by a party, it may still be enforceable as a contract. 

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