Alternative Dispute Resolution – Rule 11, Mediated and Informal Settlement Agreements
Many family law matters are concluded with an agreement between parties instead of going to a trial and having the judge make decisions regarding you and your family. If an agreement is reached through alternative dispute resolutions, there are numerous guidelines, legal processes, and formats that must be followed and adhered to for the agreement to be binding on both parties. These legal instruments are utilized to settle and agree upon terms of a family law case before having to go to a final trial and can also be used as an alternative to a temporary order hearing.
If you and the opposing party go to mediation and are able to reach an agreement, you will sign a mediated settlement agreement. A mediated settlement agreement is extremely difficult to revoke once signed and agreed to by all parties. Family law issues, in general, are no small task, and unless you are familiar and up to date on current law, you need a tested and respected North Texas attorney that knows, the judges, the preferences, and best practice favored in Collin, Denton, Tarran, and Dallas Counties.
Rule 11 of the Texas Rules of Civil Procedure governs written and oral agreements between attorneys. This can include the settlement of pending lawsuits or contested issues in a lawsuit. The rule provides: Unless otherwise provided in the Texas Rules of Civil Procedure, no agreement between attorneys or parties touching any suit pending is enforceable unless it is in writing, signed and filed with the papers as part of the record, or is made in open court and entered of record. Rule 11 provides that no agreement to settle a lawsuit will be enforced by a court unless it is in writing, signed and filed with the papers as part of the record, or is made in open court and entered of record. It is only in this sense that Rule 11 defines a type of agreement (i.e., an enforceable agreement versus a non-enforceable agreement to settle a lawsuit).
Rule 11 exists because verbal agreements of counsel respecting the disposition of cases are likely to be misconstrued and forgotten and to lead to misunderstandings and controversies. The Texas Civil Practice and Remedies Code makes written agreements which settle and dispose of a pending lawsuit enforceable in the same manner as any other written contract. However, it is important to note that using a Rule 11 agreement to finalize a matter is very risky as it does not provide the protection against revocation that a mediated settlement agreement contains.
MEDIATED SETTLEMENT AGREEMENTS
A mediated settlement agreement is enforceable if: (1) in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation; (2) is signed by each party to the agreement; and (3) is signed by the party’s attorney, if any, who is present at the time the agreement is signed. If a mediated settlement agreement meets these requirements, a party is entitled to judgment on the terms of the mediated settlement agreement.
It is extremely rare for a court to decline judgment on a mediated settlement agreement. However, under the rare circumstances in which a court finds that (1) a party to the agreement was a victim of family violence, and that circumstance impaired the party’s ability to make decisions; and (2) the agreement is not in the child’s best interest, declination is possible. A mediated settlement agreement must meet all requirements of the Family Code in order to bind the parties. So, while generally, a court has no authority to alter, change, amend, or modify the material terms to which the parties have already agreed there are extremely limited exceptions to the rule.
The limited ability to revoke a mediated settlement agreement is very important to understand. If a party fails to exercise diligence in investigating facts or law or makes an agreement unadvisedly, there will likely be no reprieve from the agreement. Attention to detail and being prepared is the key to success. If you have questions or concerns about the mediated settlement agreement, don’t sign it.
INFORMAL SETTLEMENT AGREEMENTS
There is specific verbiage pertaining to informal settlement agreements in the Texas Family Code, specifically regarding what is accepted to validate or prove invalid these agreements. The parties to a suit for dissolution of a marriage may agree to one or more informal settlement conferences and may agree that the settlement conferences may be conducted with or without the presence of the parties’ attorneys, if any.
A written settlement agreement reached at an informal settlement conference is binding on the parties if the agreement provides, in a prominently displayed statement that is in boldfaced type or in capital letters or underlined, that the agreement is not subject to revocation; is signed by each party to the agreement; and is signed by the party’s attorney, if any, who is present at the time the agreement is signed. If the above terms are met, the court will likely enter judgment on same. As with mediated settlement agreements, there are circumstances where the Court can refuse to enter judgment and set the matter for a final trial. It is important to consult with a family law specialist to determine what your rights are if you seek to revoke an informal settlement agreement.
Mark L. Scroggins has been practicing law in Texas for over 25 years and is board certified in family law by the Texas Board of Legal Specialization. Mr. Scroggins understands the magnitude of ending what was intended to be a lifelong commitment. Scroggins Law Group has an experienced and dedicated staff who is here to shepherd and navigate you through the emotionally and physically draining legal process of divorce. We are here for you every step of the way. Contact us for a one on one consultation to see why Mr. Scroggins has been named a “SUPERLAWYER” every year since 2014. Call today 214-469-3100 or find us online at www.scrogginslawgroup.com.