There are many advantages to using mediation to handle family law matters such as divorce or custody issues. Advocates point to benefits, such as it is less expensive and much quicker than litigation. It also gives the couple much more control over how matters are resolved rather than leaving such matters to a stranger (the judge) to make important decisions that will affect the lives of family members.
There are, however, some disadvantages to utilizing this approach. Along with sidestepping courtroom procedures and legal tools designed to get to the truth for a fair and balanced ruling, some are concerned about such benefits as confidentiality.
When is confidentiality not enforceable?
A ruling on a recent case in a New Jersey Appellate court held that a Memorandum of Understanding (MOU) drafted and signed by the two sides' mediator was unenforceable. The MOU is a non-binding agreement that outlines the details of the mediated settlement arrangement ("MSA"). The court deemed that the MOU's confidentiality was limited because not all parties had actually signed it.
The court also pointed out that both parties could also choose to waive the confidentiality clause. The details of the above case were that one side claimed that they did not agree to the terms; therefore, it is inadmissible as evidence during subsequent litigation the couple is now involved in.
Texas's Alternative Dispute Resolution (ADR) Act makes it clear that there will be confidentiality of communication between the parties as well as the mediator during and after the suit. These discussions are not subject to disclosure and may not be used in administrative proceedings unless the information is discoverable by other means independent of the ADR. Neither the participants nor a third party arbitrator are required to testify and are not required to disclose confidential information. Unless both parties agree otherwise, the ADR proceedings are confidential.
Make sure they sign (or you do not sign)
Mediation agreements signed at the end of the process are legally binding contracts enforceable in a court of law, but those agreements can also serve as a template for the final decree of divorce drafted by an attorney. Working with an Experienced Board-Certified Family Law expert attorney who works in Collin County, Dallas County, Denton County or elsewhere throughout Texas can make a difference in understanding the mediation process and making sure that you understand whether your Mediated Settlement Agreement at the end of the process is binding.