25 Feb What Is A Drive-By Mediation?
A drive-by mediation is where parties to a family law dispute meet with a mediator to confirm an existing agreement. Unlike most mediations, which are convened to resolve differences, a drive-by mediation is used to cement an existing agreement. For information about traditional mediation click here.
The term “Drive-By Mediation” is used because the agreement is already made, and the mediation is a short formality to make it enforceable and irrevocable. Bargaining and negotiation are not part of a drive-by mediation. It is not a legal term, but a nickname created by the legal community.
A drive-by mediation has two primary benefits. First, a mediated settlement agreement (“MSA”) is irrevocable. Once the mediated agreement is signed, neither party may renege or change their mind. It might take weeks to get the final divorce decree or other child-related order signed. By signing an MSA, neither party can revoke the agreement while the decree or order is worked on.
Second, a judge must sign an order based on an MSA. Without an MSA, a judge may deny an agreement if the judge thinks it’s not in the child’s best interest or a property agreement is not ‘just and right’ in the judge’s eyes. Confirming the agreement in an MSA removes the judge’s discretion to deny it.
Because judges are lawyers first, they bring opinions about what is a fair property division or best for a child. Those opinions might make a judge reject an agreement even though the parties agree. A judge might think the law does not allow him or her to approve the parties’ agreement. By confirming it in an MSA, the judge loses the right to disapprove it.
In recent years Texas courts have issued opinions confirming that mediated settlement agreements are irrevocable. In a 2013 case, the supreme court wrote:
“Thus, it is clear that the MSA statute was enacted with the intent that, when parents have agreed that a particular arrangement is in their child’s best interest and have reduced that agreement to a writing complying with section 153.0071, courts must defer to them and their agreement.” In Re: Stephanie Lee, 411 S.W.3d 445, TX 2013.
In Lee, the parents reached an agreement that one tried to revoke. The trial court refused to sign the order and the supreme court wrote that the court had no authority to reject it.
In 2018 a Houston court of appeal held the parties could not revoke an MSA. Both parties stated on the record they wanted to revoke the MSA and the trial judge accepted the revocation. Much later, after hiring a new lawyer, a party sought to enforce the MSA. The court of appeals held the original MSA could not be revoked, even if both parties consented. It was enforced. See In Re: Minix, 543 S.W.3d 446, Tex App Hou. [7th], 2018.
In Highsmith v. Highsmith, 587 S.W.3d 771, TX 2019, the Supreme Court held that a mediated settlement agreement was irrevocable even though it was signed before a divorce was even on file. This is not directly related to drive-by mediation but shows the extent Texas courts go to in enforcing mediated settlement agreements.
Are Drive-By Mediations Legal?
The Texas Civil Practice & Remedies Code section 154.023 defines mediation simply as:
“(a) Mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them.
(b) A mediator may not impose his own judgment on the issues for that of the parties.”
Nothing suggests a minimum required level of disagreement. An MSA is irrevocable and binds all parties. It ensures nobody can renege. That alone is a good reason to confirm an agreement in an MSA.
Cases from the United States and Texas supreme courts have held that parents have the preeminent right to decide what is best for their children. Adults may divide their property as they wish. Texas courts have made clear that mediated settlement agreements bind the trial judge. There is no reason to doubt the validity of a drive-by MSA.
How Much is a Drive-By Mediation?
The cost of mediation varies by region. Typically, it costs more in larger metropolitan areas. In the Houston area, expect it to cost $200 – $400 plus attorney’s fees. This can be divided between the parties or, in a divorce, paid from community funds.
If the agreement is rejected, a drive-by mediation can be convened and at a second hearing it is likely to be approved. Whether to conduct a drive-by mediation first or see if the judge approves the agreement without it depends on the case and the Judge. Ultimately, if the non-MSA agreement is rejected by the Judge a drive-by mediation can be convened and the agreement re-presented to the judge as an irrevocable MSA. The judge will then sign the order confirming the agreement.
There may come a time when Judges approve more agreements without making the parties jump through the hoop of a drive-by MSA, but until then it is a useful way to get an agreed order signed by the Judge.
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