law-ADR-family-law | arbitration | mediation | mediated settlement agreement | MSA |
MEDIATION & MEDIATED SETTLEMENT AGREEMENT (MSA)
Mediated settlement agreements are addressed by the Texas Family Code. A mediated settlement agreement
is binding only where it "provides, in a prominently displayed statement that is in boldfaced type or capital
letters or underlined, that the agreement is not subject to revocation[.]" TEX. FAM. CODE ANN. § 153.0071(d)
(1) (West 2009).
Section 6.602 of the Texas Family Code states:
(b) A mediated settlement agreement is binding on the parties if the agreement:
(1) provides, 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.
(c) If a mediated settlement agreement meets the requirements of this section, a party is entitled to judgment
on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another
rule of law.
TEX. FAM. CODE ANN. § 6.602(b), (c).
PETITIONS DENIED BY THE TEXAS SUPREME COURT
08-0565
GARY DEAN BROOKS v. DANA LEDON BROOKS; from Wise County; 2nd district
(02-07-00270-CV, 257 SW3d 418, 06-05-08, pet. denied Sep 2008)(mediated settlement agreement, estoppel)
In this appeal, we determine whether a party to a mediated settlement agreement meeting the requirements of
family code section 6.602 is estopped from enforcing the agreement after he has agreed to set it aside and go
to trial. Tex. Fam. Code Ann. ' 6.602 (Vernon 2006). In two issues, appellant Gary Dean Brooks contends
that the trial court erred by failing to render judgment in accordance with the mediated settlement agreement
and by awarding appellee Dana Ledon Brooks spousal maintenance under family code section 8.053(b). Id. '
8.053(b). We affirm.
Texas has a public policy of encouraging the peaceful resolution of disputes, particularly those involving the
parent-child relationship, and the early settlement of pending litigation through voluntary settlement
procedures. Tex. Civ. Prac. & Rem. Code Ann. § 154.002 (Vernon 2005); Boyd v. Boyd, 67 S.W.3d 398, 402
(Tex. App.- Fort Worth 2002, no pet.). Trial and appellate courts are charged with the responsibility of
carrying out this public policy. Tex. Civ. Prac. & Rem. Code Ann. § 152.003 (Vernon 2005); Boyd, 67 S.W.3d
at 402; Adams v. Petrade Int'l, Inc., 754 S.W.2d 696, 715 (Tex. App.-Houston [1st Dist.] 1988, writ denied) (op.
on reh'g). The Texas Family Code also furthers this policy by providing that a mediated settlement agreement
is binding on the parties if the agreement
(1) provides, 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.
Tex. Fam. Code Ann. '' 6.602(b), 153.0071(d) (Vernon 2002 & Supp. 2007). Mediated settlement agreements
are binding in suits affecting the parent-child relationship, as well as suits involving only marital property. Id. ''
6.602(b)B(c), 153.0071(d)B(e); Boyd, 67 S.W.3d at 402; Spinks v. Spinks, 939 S.W.2d 229, 230 (Tex. App.-
Houston [1st Dist.] 1997, no writ). Here, because there are no conservatorship and possession issues to be
determined, only section 6.602 is applicable. See Boyd, 67 S.W.3d at 402.
Ordinarily, settlement agreements arising from mediation are not binding when one party timely withdraws
consent to the agreement, unless the other party successfully sues to enforce the settlement agreement as a
contract that complies with rule 11 of the Texas Rules of Civil Procedure. See Tex. Civ. Prac. & Rem. Code
Ann. ' 154.071(a) (Vernon 2005); Padilla v. LaFrance, 907 S.W.2d 454, 461B62 (Tex. 1995); Boyd, 67 S.W.3d
at 402. Unilateral withdrawal of consent does not, however, negate the enforceability of a mediated settlement
agreement meeting the requirements of 6.602(b), and a separate suit for enforcement of a contract is not
necessary. Boyd, 67 S.W.3d at 402; Alvarez v. Reiser, 958 S.W.2d 232, 234 (Tex. App.- Eastland 1997, writ
denied). Rather, section 6.602 creates a procedural shortcut for the enforcement of mediated settlement
agreements in divorce cases. Boyd, 67 S.W.3d at 402; Cayan v. Cayan, 38 S.W.3d 161, 166 (Tex. App.-
Houston [14th Dist.] 2000, pet. denied). Thus, a mediated settlement agreement that meets the requirements
of section 6.602(b) is binding, and a party is entitled to judgment on the agreement notwithstanding rule 11 or
another rule of law. Tex. Fam. Code Ann. § 6.602(b) (c); Boyd, 67 S.W.3d at 402.
The phrase “notwithstanding rule 11 or another rule of law" does not, however, require a trial court to enforce
a mediated settlement agreement simply because it complies with section 6.602(b), irrespective of what the
agreement provides for or how it was procured. Boyd, 67 S.W.3d at 403. For example, a trial court may
properly refuse to enforce a mediated settlement agreement that otherwise complies with section 6.602(b) if a
party procures the agreement by intentionally failing to disclose material information. See id. At 404-05.
08-0347
IN THE MATTER OF L.M.M., A CHILD; from Collin County; 5th district (05-07-00504-CV, 247 SW3d 809, 03-19-
08)(family law, SAPCR, enforceability of mediated settlement agreement MSA in child custody case)
Michelle Wright (Mother) challenges the trial court's judgment based on a mediated settlement agreement
(MSA) designating Gary Murtha (Father) as the managing conservator with the exclusive right to determine the
primary residence of L.M.M. and giving Father the exclusive right to establish L.M.M.'s primary religious faith.
In five issues, Mother contends the judgment is not supported by the pleadings or the evidence, the judgment
is an improper consent judgment and does not conform to the MSA, and the judgment violates Mother's and L.
M.M.'s rights to freely practice their religion. We affirm.
07-1016
SHERRILL IVERSON PETTUS, ET AL. v. JO ANN GEURIN PETTUS; from Young County; 2nd district
(02-05-00110-CV, 237 SW3d 405, 09-13-07, pet denied April 2008)(arbitration in family law case)
This appeal involves the trial court's decisions regarding an arbitration that occurred within the context of a
complex divorce. Appellant and cross-appellee, Jo Ann Geurin Pettus, appeals the part of the trial court's
divorce decree allowing a pending arbitration proceeding to continue after entry of the decree and the trial
court's subsequent judgment ordering Southern Bleacher Co., Inc.Ca closely held corporation that the trial
court awarded solely to Jo AnnCto pay arbitrators' fees and attorneys' fees to appellees and cross-appellants,
Curtis W. Martin, Charles E. Bearden, and Richard T. Sink. Appellees and cross-appellants, Marc Alloju,
Russell Deck, Joey Harrison, Baldo Navarez, Janice Roberts (all employees of Southern Bleacher), and Sherrill
Iverson Pettus (Jo Ann's ex-husband), appeal from the part of the trial court's judgment vacating the
arbitrators' decision. In addition, Martin, Bearden, and Sink (the arbitrators) appeal the rate of pre- and post-
judgment interest awarded by the trial court on their award of arbitrators' and attorneys' fees. We reverse and
remand the part of the judgment awarding pre- and post-judgment interest, but we affirm the remainder of the
judgment.