Alternative Dispute Resolution (ADR)
Settlement of a divorce case, perhaps more so than other civil cases, is not only the most economical method for the parties to end their marital relationship, but also the method by which both parties may believe they "got what they wanted" and didn't get "cheated" by the system or by the lawyer. The public policy of Texas, as set out in the Family Code, as well as the rules governing the Texas State Bar, promote out-of-court settlement of family law disputes. Similarly, Texas public policy encourages the parties to a divorce to enter into a written agreement concerning the division of all their property and liabilities.
An agreement incident to divorce may also address child custody, visitation, and child support issues, as well as post-marital obligations of one of the former spouses to provide support and maintenance for the other, and education for the children. All agreements incident to divorce must be in writing. Oral divorce agreements are not effective A mediated settlement agreement in a suit affecting the parent-child relationship must be in writing and signed by the parties and any party's attorney present at the signing if it is to be nonrevocable and binding.
On the written agreement of the parties, the court may refer a suit for dissolution of marriage, including a suit affecting the parent-child relationship, to mediation. Once the parties agree to mediation and reduce that agreement to writing, the suggested practice is to present to the court a joint or agreed motion and order for mediation referral, incorporating the terms of the agreement. The written agreement for mediation should set the ground rules for the dispute resolution procedure by covering matters such as:
• Who will serve as mediator or how the person is to be selected.
• What facts or issues are not in dispute and are stipulated and agreed between the spouses.
• Whether mediation will be limited to specified issues (such as conservatorship of children only) or cover all matters in dispute.
• The suspension of discovery during certain time periods during the mediation process.
• Payment of mediation expenses.
A court may refer a divorce case and a suit affecting the parent-child relationship to mediation on the motion of any party, even when the parties do not agree to submit their dispute to an alternative resolution method. However, one or both parties may successfully contest that upon hearing with certain specific objections.