Mediation: Be Prepared

I. INTRODUCTION:

Mediation is defined as “a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them.” See Texas Civil Practice and Remedies Code ¤154.023. Many courts have adopted a mandatory mediation requirement before the Court will set the case for final trial. Mediation is strongly encouraged as an alternative method to the long and costly process of a trial.

II. APPLICABLE STATUTES

The rules for mediation are enumerated in Chapter 154 of the Texas Civil Practice and Remedies Code. On either the motion of a party or the court, a case may be referred to mediation. See Texas Civil Practice and Remedies Code ¤154.021(a). A motion and order for mediation are included as APPENDIX A and B. If a Court refers a case to mediation, it shall notify the parties of its determination. See Texas Civil Practice and Remedies Code ¤154.022(a). Once a Court notifies that parties that the case has been referred to mediation, the parties may, within ten (10) days after receiving such notice, file a written objection to the referral. See Texas Civil Practice and Remedies Code ¤154.022(b).

III. CONFIDENTIALITY

Any communication relating to the subject matter of a dispute which is made by a participant in an alternative dispute resolution procedure is confidential and is not subject to disclosure. Such communication may not be used as evidence against the participant in any judicial proceeding. See Texas Civil Practice and Remedies Code ¤154.073. The exceptions to this rule are (1) if the oral communication is discoverable independent of the procedure, or (2) if the rule conflicts with other legal requirements for disclosure of communication.

IV. DECIDE IF THE CASE IS RIPE FOR MEDIATION

Prior to scheduling a mediation, make sure the following have been completed:

1. sworn inventories;
2. appraisals;
3. social studies; and
4. any other necessary discovery.

Mediation can be costly and generally occurs only once per case. Preparation will give you an increased probability of reaching a settlement. Also make sure you have at least attempted to settle the case prior to mediation.

V. MEETING WITH YOUR CLIENT PRIOR TO MEDIATION

A. Explain the process.
Tell your client that they must make a “good faith effort” to settle the case, however, they are not under any obligation to settle. You must inform them of the enforceability of an agreement should one be reached by the end of the day.

B. Explain that the process is confidential.
Let your client know that if the case is not resolved, the settlement negotiations that take place cannot be used against them in court.

C. Explain the time involved.
Whether you are scheduled for a half-day mediation or a full-day mediation, inform your client that the mediation may not end exactly at the time indicated. Should you be close to a resolution, the parties and the mediator may chose to extend the mediation time with the hopes of resolving the case.

D. Avoid scheduling conflicts.
Make sure your client has made proper travel arrangements and made plans for a babysitter for the children if necessary.

E. Make sure all key players are available.
If you anticipate the need for an accountant or other expert to review an offer, make sure that they are available in person, by telephone or by facsimile transmission.

VI. PREPARING FOR MEDIATION

A. Send the mediator relevant information.
Most mediators will send you a confirmation letter confirming the mediation and requesting certain information for their review. If they do not indicate what information they would like, consider forwarding the following:

1. Attorney’s information sheet and position statement;
2. Parties’ factual data;
3. All live pleadings;
4. Relevant discovery
5. Social study, psychological evaluations, election of child;
6. Current inventory;
7. Tracing data;
8. Statutory and case law;
9. All parties’ offers and counter-offers; and
10. Prepared settlement offer.

B. Anticipate spouse’s offer.
Hopefully prior to mediation you have had an opportunity to discuss settlement with the opposing counsel so that you have some idea of what a preliminary offer may be.

C. Prepare a settlement offer.
Attached as APPENDIX C is a form of a settlement offer that may be useful in your mediation. Be sure to realistically evaluate your case and help your client do the same. Talk to your client about what may or may not happen at the mediation. Explain the costs of litigation and make sure that these are considered in the evaluation of your case.

D. Prepare a mediation notebook.
If your case file consists of multiple boxes of information, prepare a mediation notebook containing all the information necessary for the mediation. In addition to copies of the information provided to the mediator, you many also want to include the following:

1. Information sheet [including parties, children (names and ages), etc.];
2. Notes on opening statement;
3. Current settlement offer; and
4. Blank spreadsheets indicating assets and liabilities.

If your case does not warrant a mediation notebook, at least make sure that your file is in order so you can easily access all the information you may need.

VII. EFFECT OF A WRITTEN SETTLEMENT AGREEMENT

Texas Civil Practice and Remedies Code ¤154.071 states that:

(a) If the parties reach a settlement and execute a written agreement disposing of the dispute, the agreement is enforceable in the same manner as any other written contract.
(b) The court in its discretion may incorporate the terms of the agreement in the court’s final decree disposing of the case.
(c) A settlement agreement does not affect an outstanding court order unless the terms of the agreement are incorporated into a subsequent decree.

Make sure that your client is aware that at the end of the day (or evening), once the parties reach a settlement and execute a written agreement, that agreement is enforceable as a written contract.

VIII. USEFUL STATUTES AND CASE LAW REGARDING MEDIATION

A. Padilla v. LaFrance, 907 S.W.2d 454 (Tex. 1995).
Padilla puts the Ames/Cary confusion to rest. The initial “blockbuster” appellate case concerning mediation came in In re: Marriage of Ames, 860 S.W.2d 590 (Tex. App. — Amarillo 1993, no writ) wherein the Court of Appeals held that a Rule 11 Agreement emanating from a court-ordered mediation precludes one’s ability to subsequently withdraw their consent pursuant to Chapter 154, Texas Civil Practice and Remedies Code. For the years following Ames, most family practitioners felt that Mediated Settlement Resolutions could therefore not be repudiated.

This case was distinguished in Cary v. Cary, 894 S.W.2d 111 (Tex. App. — Houston [1st Dist.] 1995, no writ) wherein the magic application of Section 154, T.C.P. & R.C. was not recognized. However, it is felt that Cary correctly recognized that by one’s repudiation prior to entry of decree precluded the court from entering a consent judgment. In accompanying dictum, the Houston Court recognized that the Mediated Settlement Resolution remains binding under principles of contract law and the pursuit of such would be the appropriate remedy.

The Supreme Court in May, 1995, resolved the conflict between Ames and Cary, and also spoke one’s ability to repudiate under Rule 11 in Padilla, when it stated as follows:

“The withdrawal of consent as many of us have mystically believed was available under Rule 11 is not as inalienable as heretofore believed.”

A close reading of Padilla indicates that the only impact that a withdrawal of consent or repudiation might have is to preclude the Court from entering an agreed decree. Justice Phillips went on to state that if one withdraws their consent prior to filing to the agreement ( pursuant to Rule 11) then the appropriate remedy would be the pursuit of judgment based upon the contractual obligation arising out of the Rule 11 Agreement (as opposed to an agreed decree). In Padilla this was done by remanding the case to the trial court for ostensibly the granting of a summary judgment encompassing the terms of the mediated settlement agreement.

A. Section 154.021, Texas Civil Practice and Remedies Code, allows a Court, even on its own motion, to refer a matter to mediation even without the consent of the parties or attorneys;
B. Section 154.022(b), Texas Civil Practice and Remedies Code, requires that any objection to the referral be made within ten (10) days of receiving the notice of same;
C. Amendment to Family Code. The 74th Legislature amended the Family Code to include provisions regarding mediation. Both ¤3.522 and ¤102.0085 of the Texas Family Code both require the following statement to be included in the first pleading filed by a party:

“I AM AWARE THAT IT IS THE POLICY OF THE STATE OF TEXAS TO PROMOTE THE AMICABLE AND NON-JUDICIAL SETTLEMENT OF DISPUTES INVOLVING CHILDREN AND FAMILIES. I AM AWARE OF ALTERNATIVE DISPUTE RESOLUTION METHODS INCLUDING MEDIATION. WHILE I RECOGNIZE THAT ALTERNATIVE DISPUTE RESOLUTION IS AN ALTERNATIVE TO AND NOT A SUBSTITUTE FOR A TRIAL AND THAT THIS CASE MAY BE TRIED IF IT IS NOT SETTLED, I REPRESENT TO THE COURT THAT I WILL ATTEMPT IN GOOD FAITH RESOLVE CONTESTED ISSUES THIS CASE BY ALTERNATIVE DISPUTE RESOLUTION WITHOUT THE NECESSITY OF COURT INTERVENTION.”

The above statement must be printed in boldfaced type or capital letters and signed by the party.

IX. PREPARING YOUR CLIENT FOR MEDIATION

A. Meet with Client

Prior to mediation day, it is essential to meet with your client and, as applicable, any experts to formulate a game plan.

1. Formulate Settlement Offer
   This writer has attended countless mediations where it is obvious that the attorneys and clients have never discussed settlement offers. It is too burdensome to require a client to initially formulate a settlement offer during the morning of mediation. Do it in advance — have it prepared and typewritten for presentation to the mediator. This will save time and allow the client to be more confident.
2. Anticipate Spouse’s Offer
   In this same meeting, anticipate what the other party’s opening offer might be and review this with your client. Often opening offers favor the submitting party and create anger or anxiousness on the part of the receiving party. If this is explained prior to mediation, it will eliminate many surprises and ill-feelings. Anger and ill-feelings can be nothing but counter-productive to the mediation process.
3. Explore Strengths and Weaknesses
   Fully explain the Strengths and weaknesses of the case. Undoubtedly these strengths and weaknesses will be discussed at the mediation. Better practice is to allow the client to hear these from you well before the mediation.
4. Best/Worst Scenarios
   Discuss the best and worst case scenarios allow your client to hear that any case can be won or lost on any given day. Discuss with them the parameters of what a judge’s ruling might include on both your best and worst day in court.
5. Confidentiality
   To insure your client’s ease of participation, explain the aspects of confidentiality, privilege, and impartiality. This will enhance the integrity of the process.
6. Mediation Anatomy
   Explain to your client the typical anatomy or format that your chosen mediator implements, i.e. if they begin with a general session of all parties and attorneys, which would include an opening statement from each of the parties. Explain what time commitment will normally be expected and even explore the possibility of the client participating in the opening statement.
7. Opening Statement
   This is a golden opportunity (and perhaps the only one) to speak directly to the other party. This can be a powerful tool if used correctly. Unfortunately, it is one that is seldom used and often ignored. Consider also your client participating in the presentation.

B. Pre-Mediation Housekeeping

1. Avoid Scheduling Conflicts
   Make advance arrangements to ensure adequate time for attendance (childcare, airline flights, dinner dates, etc.) without scheduling conflicts.
2. Availability of Key Players
   Ascertain that all advisors, experts, partners, etc., are available to be contacted on mediation day. If their advice or input is essential for a mediated settlement, then their accessibility is a must!
3. Checklist
   A checklist of all issues to be presented or considered throughout the day can be quite helpful to the process. It is tragic to sign-off on a mediated settlement, only to return to the office and realize that same failed to include disposition of Aunt Minnie’s quality, the payment of the 1992 income taxes or other similar “deal killers”. It also results in irate clients. While one is limited only to the scope of their imagination, a suggested checklist format is attached as APPENDIX D.
4. Position Statement
   Typically the prospective mediator will disseminate information sheets or position statements to be completed and returned prior to mediation. If these are returned on the day of mediation, they will often go unread or unappreciated. It can also result in your client questioning to what extent you are prepared. Remember — the more you allow your mediator to prepare, the quicker the process will evolve on mediation day. A comprehensive Information Sheet attuned to family law litigation is attached as APPENDIX E.
5. Physical Preparation
   At the risk of sounding corny, counsel with your client about getting a good night’s sleep and a hearty breakfast prior to mediation. Expect mediation day to be intense, arduous and often span from 9:00 a.m. until late evening. Afternoon “fading” is commonplace but can be easily overcome. Urge your client to bring snacks, crossword puzzles or other pleasantries to fill idle moments.

X. CONCLUSION

This is the era of alternate dispute resolution in Texas family law. Due to the time and expense of litigation, Texas litigants and attorneys have sought relief and the Texas Legislature has responded.

Mediation has proven quite successful — it is estimated that over 90% of the cases which were submitted to mediation are resolved in a meaningful way. The parties appreciate the opportunity to have a say, a decision in their future and the future of their children. The mediation process, whether caucus style or pure form should be utilized in almost every case where negotiations between counsel have failed.

If your case does not settle fully in mediation at least try to reach a settlement in as many issues as possible and submit these to the Court in the form of a mediated settlement agreement.

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Jim Loveless and Kimberly M. Naylor practice family law with Loveless & Associates in Fort Worth, TX.