In Texas, if a mediated settlement agreement is properly executed you cannot challenge it. Texas Family Code Section 153.0071(d) and (e) mandate that courts shall issue an order in compliance with a mediated settlement agreement. This is why it is so important to have an attorney attend mediation with you. You cannot go back after the fact and change it. When the mediated settlement agreement is signed and on file with the court, that is it. Those are the terms and they cannot be changed. Many have tried and failed.
Why Would a Party Want to Back Out on a Mediated Settlement Agreement?
Mediations can sometimes be very difficult and long days. You typically do not reach an agreement until the very last hour after you have already been there for eight hours without a break. At this point, you are exhausted and you may not be thinking clearly. So, you might forget something. Also, a lot of parties have what we call “buyer’s remorse” in that you thought it sounded good at the time but now in practice it is not working out. For instance, a visitation schedule for a child—a party may end up wanting more or less time due to demanding schedules and want that changed. Or, a party may want to say that they actually wanted more child support than what they originally agreed to and they want to challenge that now. However, the law is pretty clear that you cannot.
Example of Recent MSA Challenge and Result
A perfect example of how solid this law is and how serious the appellate courts take it is fond within In the Interest of S.K.D. and J.E.D., Minor Children. In that case, the mother filed a modification of the divorce decree seeking sole managing conservatorship of the children. The trial court ordered the parties to attend mediation and the parties settled at mediation, entering into a binding mediated settlement agreement. After the mediated settlement agreement was filed, the mother filed an “emergency motion to modify the MSA” and the trial court did modify the terms but in complete opposite terms as to what the mother was wanting. She did not like that and so she appealed arguing that the trial court could not have issued these orders because they were contrary to the mediated settlement agreement. Yes, you read that correctly—mom wanted the mediated settlement agreement changed and when it did not go her way she appealed wanting the mediated settlement agreement terms reinstated.
Fortunately for the mother, the Fifth District Court of Appeals of Dallas County agreed with her and stated that the trial court did not have the authority to alter the terms of a mediated settlement agreement and overturned the trial court’s order. Citing In Re Lee, this Court held that “Section 153.0071 encourages parents to peaceably resolve their child-related disputes through mediation by foreclosing a broad best interest inquiry with respect to the entry of judgment on properly executed MSAs, ensuring that the time and money spent on mediation will not have been wasted and that the benefits of successful mediation will be realized.”
What is the Consensus for Mediated Settlement Agreements?
It is not a secret that courts take settlements very seriously and that most judges are proponents of agreements. Judges would prefer that you and the other parent are able to work out the issues and come up with a solution that you both believe is best for your child rather than the judge do it. The judges are strangers to your situation and only have a short amount of time to hear all of the facts and evidence and determine what should be done. This is a heavy burden to bear at times. However, sometimes settlements are not possible. But, when they are and when one is reached through a mediated settlement agreement you can assure yourself that it will be implemented by the trial court and if it is not the appellate court will make it right.