In this final installment of our series on the Texas family mediation case In re Lee, we’ll examine the implications of the holding upon parents, judges and mediators. To recap, the Texas Supreme Court ruled in In re Le that a trial court judge must enter a mediated settlement agreement (MSA) two parents had made arranging custody for their child, even though the judge believed the MSA was not in the child’s best interests. So what does the ruling mean for the different stakeholders in family mediation?
Parents must fully understand their agreement before making it irrevocable
As part of Benjamin Redus and Stephanie Lee’s mediation process, they inserted and signed a boldly printed statement that their agreement was irrevocable. The content of this statement was described in the Texas Family Code.
The court majority pointed out that Benjamin Redus negotiated his own MSA with Stephanie Lee, and chose to sign the statement of irrevocability. Redus later said that at the time, he believed he was getting the best deal he possibly could.
However, the dissent pointed out several potential problems with enforcing the agreement. Certain MSA terms were intended to bar Lee’s new husband Scott, a registered sex offender, from any possible contact with the child. However, Scott Lee was not a party to the agreement, so his cooperation would only be voluntary. As a party, Stephanie Lee could have been bound to some responsibility to keep her husband away from her child, but she was not. Her only requirement was to tell Redus where she thought Scott would stay on nights when she had their child. However, if Scott was not truthful or Stephanie did not comply, the MSA contained no consequences for either of them.
These contractual discrepancies may not have been obvious to Redus when he made the agreement, but they were apparent to legal professionals after the fact. In light of In re Lee, must parents have an attorney review their agreement before they sign, or bring one to their mediation? Unless they meet the narrow family violence exception described in my second post, they may not be allowed to alter the terms of their agreement after the fact.
Judges have limited ability to act on an MSA that may not be in the child’s best interests.
In cases where a judge is concerned with the best interests of the child (but not evidence of abuse or endangerment), the majority makes it clear that judges are required to enter the MSA. As discussed in my previous post, this policy is meant to promote the finality of the agreement. Since high-stakes custody battles are so damaging to children, making mediation final is meant to ameliorate that harm. The court trusts that parents will have the better understanding of their child’s best interest, and expect judges to defer to the parents’ judgment.
However, when judges feel they must intervene, the majority suggests three choices:
1) Report the situation to another agency, such as the Department of Family and Protective Services, before rendering a final judgment.
2) Delay the proceedings by entering temporary orders, restraining orders or injunctions.
3) Appoint a representative for the child, such as an attorney ad litem.
The dissent points out that protective orders require consent from several other agencies, and finds it strange to force the court to delay proceedings rather than take a more direct action.
Mediators will protect children’s interests through the mediation process.
The court majority considers mediators to be an important part of child protection. The ruling says that mediation has “safeguards inherent in that particular form of dispute resolution,” such as mandatory mediation training and special training for family disputes. The court does not say how training will protect children from questionable MSAs, but concludes that “the process itself is geared toward protecting children.”
However, this raises certain questions given the realities of mediator training and certification. Typically, mediators are certified by a non-profit, which will also deal with grievances outside of the public system. If mediators are to become important safeguards for children, is further preparation necessary?
Following In re Lee, should mediators now act as advocates for children in mediation? This is not necessarily congruent with practices today. In the present system, mediators attempt to focus the parents’ attention on the child while also facilitating settlement. They are not expected to judge whether the agreement is in the best interest of the child. But in cases where parents are unknowing or irresponsible, are mediators a viable safeguard to protect the best interest of the child?