The mediation policy and ethics questions encountered in the recent Texas Supreme Court decision In re Lee are enough to fill several blog posts. Over the next few posts, we’ll look at the many policy implications of this remarkable decision. Topics discussed will include:
- Should the finality of a mediated agreement trump changes for the child’s best interest?
- In custody policy, do mediation and arbitration differ?
- When there’s been no intimate partner violence, should settlements be irrevocable?
- Who decides potential endangerment to a child?
- What can judges do when parents in mediation act against their child’s interest?
- When a mediated agreement sets rules over non-parties, what governs their enforcement?
First, some background. In re Lee was an appeal of a judge’s refusal to enter two parents’ custody mediation agreement. In mediation, the father (Redus) and mother (Lee) had renegotiated the terms of their daughters’ custody. Their agreement had a few notable features. First, it spelled out a long, detailed list of terms attempting to ensure that Lee’s new husband would never be within five miles of the child. The agreement also featured a capitalized, bold-faced and underlined statement that both parents signed, agreeing that they understood the agreement was irrevocable.
When Redus brought the mediated settlement agreement (MSA) to court to be entered, the judge questioned its provisions. Redus explained the strict terms were needed because Lee’s new husband was a registered sex offender.
Hearing Redus’ description of the circumstances, the judge refused to enter the agreement. (P. 55)
“…I’m not going to accept this MSA. I’m not going to give her any kind of visitation….No way. I’m not going to put a kid in a house with a sex offender who violates a child. Not accepted. Appeal me.
If y’all want to go to mediation on your own that’s fine. But if you come back in here and I hear it if there’s any visitation as long as she’s married to that man and I hear the same kind of allegations, it ain’t going to happen.”
Lee, the mother, appealed the judge’s refusal. At the appellate court, more details emerged. Lee’s new husband had violated his probation (for an earlier sex offense) by having unsupervised contact with Lee’s child. However, the mother testified that both she and Redus were aware of these facts before entering mediation. Meanwhile Redus testified that he signed the mediated settlement agreement because he “thought it was the absolute best [he] could get at the time” and that he’d thought it was in the best interest of his child. Now, however, he did not, and wanted to revoke his consent. However, Redus acknowledged he had never been the victim of family violence. (Pp. 75-86)
In ruling for Lee and ordering the judge to enter the agreement, the Texas Supreme Court’s decision focused on the plain language in the mediation section of the Texas Family Code, and the policy the court believed the Legislature had intended with this language.
Texas Family Code 153.0071 says that an MSA is binding on the parties if it has a prominently displayed statement of irrevocability that is signed by the parties and their attorneys, if present. If the MSA meets this requirement, a party is “entitled to judgment” on the agreement “notwithstanding…another rule of law.”
TFC 153.0071 states that the one time a court may decline to enter a judgment on an agreement is if the court finds 1) a party was the victim of family violence which impaired their decisions, AND 2) the agreement is not in the child’s best interest.
Since Redus was not a victim of violence which impaired his decisions when he made the agreement, he could not benefit from this exception, even if he and the judge, after discussing Lee’s husband, now believed the MSA did not serve the childs’ best interest.
The next post will look at how the court weighed legislative policy supporting mediation finality against policies supporting the best interest of the child, and the alternatives the dissent preferred.