Introduction

When we talk about “drive-by” mediation, let's be clear—we're not talking about anything involving a moving vehicle or a crime scene. Instead, we're referring to a streamlined, often misunderstood process of family law mediation that can be as quick as it sounds. But just because it's fast, does that mean it's effective? Can a drive-by mediation truly serve as a legitimate resolution tool, or is it just a box to tick off before heading to court?

In this article, I'll unpack the concept of drive-by mediation, exploring its appropriate uses, potential pitfalls, and whether it can stand up as a real solution in Texas family law cases. As a mediator and former family court judge, I've seen it all – so let's dive into this somewhat controversial topic.

What is a Drive-By Mediation?

Imagine you're cruising through a fast-food drive-thru. You know what you want, you order quickly, and in a few minutes, you're on your way with exactly what you asked for. Drive-by mediation works in much the same way. It's a brief, often informal, mediation session where the goal isn't to hash out new agreements but rather to rubber-stamp an existing one. Think of it as mediation on fast-forward.

Typically, drive-by mediations are used when both parties have already reached an agreement on all major issues. The mediation is merely a formality to make that agreement enforceable and irrevocable. No muss, no fuss—just a quick meeting, a few signatures, and you're done.

As well-known family law mediator Tom King aptly puts it, “A drive-by mediation is an agreement that has been fully reached, and the parties only need to sign the agreement. It is an efficient way to formalize agreements in which nothing is contested, and everyone agrees on that up front.” 

When is a Drive-By Mediation Appropriate?

The beauty of drive-by mediation lies in its simplicity and efficiency. It's perfect when the parties are in complete agreement and need only to make it official. The main benefits? Speed and certainty.

However, while drive-by mediation can be effective for certain disputes, it is generally unsuitable for complex or deeply rooted conflicts requiring more extensive dialogue and problem-solving. It's important to note that the specific procedures and practices of mediation, including the use and definition of drive-by mediation, may vary widely depending on the attorneys and mediator involved. 

From my point of view, drive-by mediation has two primary benefits. First, a properly worded and statutorily compliant mediated settlement agreement (“MSA”) is irrevocable. Once the mediated agreement is signed, as a rule, neither party may revoke the agreement or change their mind. Getting a final divorce decree or SAPCR order signed may take weeks. If an MSA is signed, neither party can revoke the agreement while the final order is being prepared. As a side note, most family law MSAs include an arbitration clause to deal with any order drafting disputes.

Second, a judge must sign an order based on an MSA except in very limited circumstances. For example, some Texas courts have held that an MSA may be unenforceable if obtained by fraud, duress, coercion, or other dishonest means (see, Morse v. Morse, 349 S.W.3d 55, 56 (Tex. App. – El Paso 2010, no pet.); and Spiegel v. KLRU Endowment Fund, 228 S.W.3d 237, 242 (Tex. App. – Austin 2007, pet. denied). 

In recent years, several Texas courts have rendered opinions confirming that MSAs are irrevocable. In a landmark case, the parents in a custody dispute reached an agreement that one parent later tried to revoke. The trial court refused to sign an order based on the MSA, and the Court held that the trial court had no authority to reject it. The Texas Supreme Court held, “Thus, it is clear that the MSA statute was enacted with the intent that, when parents have agreed that a particular arrangement is in their child's best interest and have reduced that agreement to a writing complying with section 153.0071, courts must defer to them and their agreement.” In Re: Stephanie Lee, 411 S.W.3d 445 (Tex. 2013).

In 2018, a Houston Court of Appeals held the parties could not revoke an MSA, even though the parties stated on the record they wished to revoke it and the trial judge accepted their revocation. Later, after hiring new counsel, a party sought to enforce the original MSA. The Court of Appeals held the original MSA could not be revoked, even if both parties consented. It was, therefore, enforced.  In Re: Minix, 543 S.W.3d 446, Tex. App. – Houston [14th Dist.], 2018.

In Highsmith v. Highsmith, 587 S.W.3d 771 (Tex. 2019), the Texas Supreme Court held the mediated settlement agreement was irrevocable even though it was signed before the divorce case was on file. While not directly related to a drive-by mediation, the Highsmith case underscores the extent to which Texas courts will go in enforcing mediated settlement agreements. Talk about peace of mind!

For guidance on what constitutes a statutorily compliant MSA, one need only look to Texas Family Code Section 6.602, which provides in relevant part:

(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.

Importantly, if an MSA meets the above statutory requirements, a party is entitled to judgment on the mediated settlement agreement notwithstanding TRCP Rule 11, or another rule of law. § 6.602(c).

Texas Family Code Section 153.0071 contains similar language applicable to an MSA in a suit affecting the parent-child relationship (SAPCR). See § 153.0071(c)–(e). Notably, the court may decline to enter a judgment on a mediated settlement agreement if it finds that a party was a victim of family violence, impairing their decision-making ability, or if the agreement allows a person with a criminal history or pattern of abuse to reside with or have unsupervised access to the child, and if the agreement is not in the child's best interest. See § 153.0071(e-1), which states the Court may decline to enter judgment on an MSA if the Court finds:

(1) that:
(A) a party to the agreement was a victim of family violence, and that circumstance impaired the party's ability to make decisions; or 
(B) the agreement would permit a person who is subject to registration under Chapter 62 (Sex Offender Registration Program), Code of Criminal Procedure, on the basis of an offense committed by the person when the person was 17 years of age or older or who otherwise has a history or pattern of past or present physical or sexual abuse directed against any person to:
(i) reside in the same household as the child; or
(ii) otherwise have unsupervised access to the child; and
(2) that the agreement is not in the child's best interest.

To Heck With Mediators! What About Informal Settlement or Rule 11 Agreements? 

So why go to the trouble and cost of a formal mediation? I'm glad you asked! One of the key distinctions between an MSA and other forms of Alternative Dispute Resolution, such as a Rule 11 Agreement or an Informal Settlement Agreement (ISA), lies in the binding nature and judicial review required for each.

Rule 11 Agreements: While Rule 11 Agreements are valuable tools for resolving disputes, they have significant limitations. Despite any language stating that the agreement is “not subject to revocation,” either party can revoke a Rule 11 Agreement at any time before the court renders judgment on it. This revocation risk is critical because the agreement is not binding until the court renders judgment. Remedies for revocation are limited and typically involve pursuing a breach of contract claim, which lacks the immediacy and enforceability of an MSA. Additionally, Rule 11 Agreements, particularly those concerning child-related matters, remain subject to the court's “best interest of the child” analysis. The court has the discretion to reject the terms of the agreement if they are not in the child's best interest (see Tidwell v. Tidwell, No. 08-17-00120-CV, 2019 WL 4743685, at 3 (Tex. App.—El Paso Sept. 30, 2019, no pet.)).

Informal Settlement Agreements (ISAs): Similarly, ISAs require further judicial approval before they become binding. According to Texas Family Code § 6.604(d) and (e), the court must find that the terms of an ISA are “just and right.”  If children are involved, the Court must also find that the agreement is in the children's best interest. If the court finds the terms of the ISA are not “just and right,” it can either request the parties to revise the agreement or set the case for a contested hearing. This additional step introduces uncertainty, as the court can alter or reject the agreement.

Mediated Settlement Agreements (MSAs): In contrast, an MSA provides finality and enforceability upon execution. Once all parties have signed the MSA, it is irrevocable and binding, with no need for further judicial approval to render it enforceable. The court must enter judgment based on the MSA as long as it meets the statutory requirements, regardless of whether it believes the terms are “just and right” (see Texas Family Code § 153.0071). This makes the MSA a more secure option, ensuring that the agreements reached in mediation are final and not subject to the risks associated with Rule 11 Agreements or ISAs. Lastly, most MSAs include an arbitration clause to address any drafting disputes that may arise, offering a quick and cost-effective way to finalize the order.

In conclusion, while Rule 11 Agreements and ISAs have their place in dispute resolution, they come with significant risks and limitations, particularly regarding enforceability and judicial intervention. An MSA, on the other hand, offers a more definitive resolution, avoiding the pitfalls of potential revocation and ensuring that the agreed terms will be upheld.

When is a Drive-By Mediation Inappropriate?

Not every case is suited for the drive-by treatment. It's not a one-size-fits-all solution, and in some instances, it can be downright inappropriate. For example, if the case involves complex issues, deep-seated conflicts, or if the parties are miles apart on key issues, a drive-by mediation might do more harm than good. In such cases, a more traditional, in-depth mediation process is necessary to explore all facets of the dispute, foster communication, and work toward a comprehensive resolution.

Are Drive-by Mediations Even Allowed? 

The Texas Civil Practice & Remedies Code section 154.023 defines mediation simply as:

“(a) Mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them.

(b) A mediator may not impose his own judgment on the issues for that of the parties.”

Nothing I have found suggests there is a minimum required level of disagreement. An MSA is irrevocable and binds all parties. It ensures nobody can make an agreement and then later change their minds. That alone is a good reason to confirm an agreement in an MSA. Cases from the United States and Texas Supreme Courts have held that parents have the preeminent right to decide what is best for their children. Adults may divide their property as they wish. Texas courts have made clear that mediated settlement agreements bind the trial judge. There is simply no reason to doubt the validity of a drive-by MSA.

Is Drive-By Mediation a Legitimate Tool to Fulfill Court-Mandated Mediation Requirements?

Sometimes, a drive-by mediation is used to “check the box” to fulfill a court-mandated obligation to participate in mediation. You know the routine. You have a highly contested case where the parties are literally “North Pole” and “South Pole.” They both insist on full custody, and neither one will budge. You know in your gut that the dispute will not settle, but the Judge has ordered you to attend mediation before you get a Temporary Orders hearing or trial setting. You feel mediation will be a waste of time and money. In such cases, a quick and inexpensive solution to fulfill the Court's mediation mandate seems to be a “drive-by,” where an impasse can be quickly declared, paving the way for you to conduct your hearing.

We all know this happens, and it is tempting just to phone it in so you can check the box. But here's the deal. I've had numerous cases where both parties vowed they would never yield or relent, only to devise a solution that enabled the parties to reach agreements, including partial agreements that narrow what is in dispute for the Court to decide. So, from my point of view, mediation is never a waste of time. A skilled mediator may devise a workable solution or narrow the issues to be tried. At a minimum, you will probably learn something about your case that helps you in court. My advice is to never approach mediation as a “check the box” proposition. 

What Does the Law Say About Using a Drive-by to “Check the Box”? 

Is there any requirement that parties ordered to attend a mediation participate “in good faith” and not just check the box? From my research, the short answer is there is no such good faith requirement. 

However, once the parties appear for court-ordered mediation, any willful non-participation in the process could have serious ramifications. In the Estate of James H. Rice illustrates the dangers of non-participation in a court-ordered mediation. In Rice, a case on appeal was referred for appellate mediation. The court order required the parties to be present during the entire mediation. The order also stated that “failure or refusal to attend the mediation as scheduled may result in the imposition of sanctions, as permitted by law. If Appellant James Rice Jr. fails to attend the mediation, this appeal will be dismissed. See Tex. R. App. P. 42.3(b), (c).”

A mediation date was set, and the parties and counsel were notified. They showed up. However, the mediation session ended abruptly when Mr. Rice unexpectedly left and did not return before the mediator terminated mediation. The Court found his departure violated the Court's order, which expressly required the parties “to attend the mediation” and to “be present during the entire mediation process.” Accordingly, the Court of Appeals dismissed his appeal. Ouch!

The takeaway is that a failure to comply with a Court order – including an order requiring a party to attend mediation – can be grounds for dismissal or sanctions. Accordingly, when a court orders mediation, the best practice is for the parties to participate in good faith, to engage, and not to leave before the mediator declares an impasse.

Notably, Texas statutes are silent on the issue of good faith mediation. However, Texas Civil Practices and Remedies Code §154.002, states, “It is the policy of this state to encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures” (emphasis added).

The “voluntary” wording implies no good faith requirement, as mandating good faith could pressure those involved in the mediation, eliminating the voluntary component. Texas caselaw supports the rejection of any good faith requirement. For example, in Decker v. Lindsay, 824 S.W.2d 247 (Tex. App. — Houston [1st Dist.] 1992, no writ), the Court voided a mediation referral requiring parties to negotiate in good faith because “[a] court cannot force the disputants to peaceably resolve their differences, but it can compel them to sit down with each other.” Decker at 250. 

In short, while a party can be compelled to attend a mediation, there simply is no requirement in Texas to mediate in good faith. 

Our Drive-By Mediation Service: The Fine Print

Our firm politely declines to schedule “check-the-box” drive-by mediations. We feel an obligation to the Court to at least try to reach agreements, and as mentioned above, we often settle even “impossible” cases. 

But, while we're not fans of the “check-the-box” approach, we do offer drive-by mediation services under specific conditions:

• Availability: This service is only offered for cases that have already reached a full settlement, requiring only a Mediated Settlement Agreement (MSA) to formalize the parties' existing agreement. You must schedule a half-day mediation session if a complete agreement has not been reached.
• Scheduling: we schedule these sessions at 8:00 a.m. or 6:00 p.m., lasting 30 minutes. Sessions are conducted exclusively via Zoom.
• Pricing: this service costs $200.00 per party, payable via credit card at least 24 hours before the session. Overtime, if any, is billed at $150.00 per party per hour, with a one-hour minimum due after mediation.
• Legal Representation: at least one of the parties must represented by legal counsel.
• Documentation Required: the terms of the agreement must be provided in exhibit form or as a copy of the proposed order to be entered, in advance.
• Virtual Presence: before signing the MSA, all parties and their respective counsel must appear on camera via Zoom to confirm the agreement.
• E-signature: once the MSA is ready for signature and all parties have appeared via Zoom to confirm the agreement, it will be distributed to all parties and counsel for electronic signing.

Conclusion: Is Drive-By Mediation Right for You?

Drive-by mediation isn't for everyone, but when used appropriately, it's a powerful tool to quickly and effectively resolve disputes. It offers a straightforward path to formalize agreements and move forward with confidence. As a former family court judge, I've seen the value of mediation firsthand. I'm committed to helping you find the best resolution for your clients—whether through a drive-by session or a more traditional mediation approach.

So, the next time you consider a drive-by mediation, ask yourself: Is this just a checkbox, or is it a genuine opportunity to economically achieve a lasting resolution? If it's the latter, let's get to work.

Armatys Millard Is Here to Help!

Walter Armatys and John Millard have significant family law experience as trial lawyers and Family Court Judges. This judicial experience gave Walter and John a keen insight into how Judges think, what persuades them, what annoys them, and, importantly, what information Judges need to make an appropriate ruling. Armatys Millard provides mediation and arbitration services for family law disputes pending in Fort Bend, Harris, and surrounding counties. You can count on our extensive family law experience and judicial wisdom to help successfully resolve your case.

Contact Us Now

If you need to mediate or arbitrate a divorce, custody dispute, or other family law issue, Armatys Millard, PLLC, can help. Check availability and book your session online, or call our office at 281-313-6800. We're here to help!

** SPECIAL ACKNOWLEDGEMENT **

I would like to thank Tom King for his invaluable insights regarding this article's topic and his generous contributions to family law mediation. 

A true innovator, Tom pioneered the use of online family law mediation in Texas long before COVID-19 made it a widespread necessity. His commitment to advancing our practice is evident through his creation of the innovative Toolkit.law app and his Harris County Help Sheet, both valuable tools for mediators and attorneys alike.

Thank you, Tom, for your time, support, and unwavering dedication to the advancement of mediation. Your contributions continue to empower and educate us all.