Alternative dispute resolution ("ADR") is a means by which parties resolve their dispute without the intervention of a court. There are four common and known types of alternate dispute resolution in Texas, as well as a fifth that is mostly unknown and, frankly, underutilized. The types of family law ADR are:
1. Informal settlement agreements;
4. Collaborative law; and
5. Trial by special judge.
An Informal Settlement Agreement ("ISA") is something arrived at directly between the parties, often with help from their attorneys, without the use of a third party to help resolve issues. Language required by statute can be used to make terms binding for grounds for divorce and division of property and debts, but these are not irrevocable for parent-child relationship issues (custody, possession and access, and child support).
Mediation is an informal process when the parties use a mediator, a neutral third party, to help in negotiations to assist the participants resolve as many issues in their case as possible. If the litigants agree, they will sign a document called a mediated settlement agreement ("MSA").
A mediator is not a judge or arbitrator, they cannot impose their own ruling on the participants, they can only facilitate the collaborative process to settle disputes. The mediator works with both sides to broker a voluntary agreement between the participants. Mediation is typically required before litigants can have a contested hearing for temporary orders or final trial in the courts in Harris and surrounding counties.
Should the participants enter a MSA, either is entitled to rendition and a final order conforming to its terms. A properly drafted and executed MSA is a binding agreement under Texas Family Code, with only a narrow set of exceptions that allows a party to avoid the agreement. The parties' attorneys will then draft a final order that conforms to the terms of the MSA to be entered for signing by the court.
Mediation can be best place to resolve a case, as it allows the parties to craft the terms that best suit their own situation while having an irrevocable agreement that forecloses additional litigation, should the other side end up with "buyer's remorse."
Arbitration is a process in which the parties agree that an arbitrator will provide an impartial evaluation of their issues by listening to the case, assess the evidence, and come to a decision that will be binding on the parties. In arbitration, the decision is reached by the arbitrator without the involvement of a judge or jury.
The use this process, parties enter an arbitration agreement to litigate the case to an arbitrator. That agreement will contain an arbitration clause that defines the scope of issues to be decided by the arbitrator, the powers of the arbitrator, and the process the parties will follow (how will discovery be conducted, how will evidence be presented in the arbitration, etc.). Typically, the court will then abate (put on hold) the case while the parties pursue resolution by arbitration.
The parties will then litigate their case to the arbitrator. The arbitrator will then issue decision called an "arbitration award." There are significant limitations on the ability to appeal the decision of the arbitrator to the trial court or appellate courts: there are unique procedural deadlines involved, and appellate courts are extremely deferential to the arbitrator's award (to the extent misapplied law will not be reversed).
The main goal of collaborative law is to reach an agreement without having to go to court. The process starts with each party signing a contract agreeing not to litigate their case in court and instead work together towards finding solutions outside of court. Each party will also have their own lawyer who can provide legal advice throughout the process.
During the collaborative law process, both parties are expected to be honest and open with each other while trying to find common ground on various issues related to the dispute at hand. All discussions between the parties must be kept confidential so that all information exchanged can remain private if needed during further proceedings.
In addition, both sides must agree on which experts may need to be consulted for assistance during this mediation (for example financial advisors or therapists). The ultimate goal is for all sides involved in this negotiation process come to an understanding with respect for one another and the outcome reached.
But if progress is not being made, either party can move to terminate the process and resume court proceedings. This will also trigger the release of attorneys and professionals used in the process, requiring the parties to hire new counsel.
Trial by special judge occurs under Tex. Civ. Prac. & Rem. Code Chapter 151. The parties may submit an agreed motion waiving their right to trial before the court or a jury, which the court will review. If approved, the parties would litigate their case to the special judge, who would have most of the same powers as the trial court (the exception being to hold someone in indirect contempt).
There are several benefits of trial by special judge. First, like arbitration, the process occurs out of the public eye. Second, the same procedural protections of litigation in the courthouse exist in trial by special judge: the rules of evidence apply, a record must be taken of any proceeding, and the parties retain their right to appeal the special judge's decision (called the special judge's "report"). Some of these protections can be agreed to for arbitration, but it can take a lot of very creative and technical language.
Another major advantage of trial by special judge over arbitration is the standard of review on appeal. Since the court is conferring their powers on the special judge, the same standards of appellate review are applied in reviewing their report as though it was a rendition by the court itself. With arbitration, the appellate courts apply an almost absurd level of deference that can allow an arbitrator to misapply the law to facts he or she received with little to no remedy on appeal to the party injured by that mistake.
Only someone qualified may serve as a special judge. One of these requirements is that the individual has served at least one full four-year term as a presiding judge.
Having an experienced and creative mediator helps settle cases; sometimes it takes a creative solution to settle a dispute outside of court proceedings. Tristan is Board Certified in Family Law by the Texas Board of Legal Specialization, presided over numerous family law cases as the presiding judge of the 245th Family District Court in Harris County, Texas, and has years of experience representing clients in private family law litigation.
Tristan has the depth and breadth of experience to help you resolve your case without the expense and damage to relationships caused by litigation. If those efforts have already run aground, Tristan has the experience and qualifications to serve as your arbitrator or special judge.
Click here to learn more about why Tristan is uniquely qualified to resolve disputes.
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