Texas divorce mediation: referral, binding agreements, and family violence

Texas courts can send a divorce or custody case to mediation, either because both spouses agree in writing or because the judge decides to. What makes Texas different is how firmly a mediated deal holds: a mediated settlement agreement that meets three requirements in the Family Code is binding, and either party is entitled to a judgment on it. Texas law also lets a person object to mediation because of family violence, and it requires safety steps if mediation goes ahead anyway.

This is general information, not legal advice. It covers Texas state law only. Your court's local rules or the judge's order in your case may add requirements.

When a Texas court refers a case to mediation

Texas has two parallel provisions in the Family Code:

• Divorce. On the parties' written agreement or on its own motion, the court may refer a suit for dissolution of a marriage to mediation (Section 6.602(a)).¹
• Custody and parenting. The same rule applies to a "suit affecting the parent-child relationship," often called a SAPCR (Section 153.0071(c)).² Texas defines a SAPCR as a suit asking for the appointment of a managing or possessory conservator (Texas's terms for custodial roles), access to or support of a child, or the establishment or termination of the parent-child relationship (Section 101.032).³

Texas's general alternative dispute resolution law, Chapter 154 of the Civil Practice and Remedies Code, also lets a court refer a pending dispute to mediation on its own motion or a party's motion (Section 154.021). For referrals under that chapter, a party may file a written objection within 10 days after notice, and the court may not refer the dispute if it finds a reasonable basis for the objection (Section 154.022).⁴

What the mediator does, and doesn't do

Texas law defines mediation as a forum in which an impartial person, the mediator, helps the parties communicate "to promote reconciliation, settlement, or understanding." The mediator may not impose his or her own judgment on the issues in place of the parties' judgment (Section 154.023).⁴

A court-appointed mediator must encourage and help the parties reach a settlement but "may not compel or coerce" them into one (Section 154.053(a)).⁴

Confidentiality. Unless the person who shared it says otherwise, a mediator may not tell one side what the other side said in confidence. Unless the parties agree otherwise, what happens during the settlement process, including how the parties and lawyers behaved, is confidential and may not be disclosed to anyone, including the court (Section 154.053(b)–(c)). Communications in mediation are generally confidential and can't be used as evidence against the person who made them. But information that could be obtained or used anyway, apart from mediation, doesn't become protected just because it was mentioned there (Section 154.073).⁴

Mediator training. To be appointed by a court under Chapter 154, a mediator generally needs at least 40 classroom hours of dispute resolution training. For disputes about the parent-child relationship, the mediator needs 24 more hours in family dynamics, child development, and family law, including at least four hours of family violence training. A court may make exceptions based on other professional training or experience (Section 154.052).⁴ For more, see how to become a mediator in Texas.

What makes a mediated settlement agreement binding

This is the most important Texas-specific rule. Under both Section 6.602(b) (divorce) and Section 153.0071(d) (custody), a mediated settlement agreement, often called an MSA, is binding on the parties if it:¹²

1. Says, in a prominently displayed statement in bold type, capital letters, or underlined, that the agreement is not subject to revocation;
2. Is signed by each party; and
3. Is signed by each party's attorney, if the attorney is present when the agreement is signed.

If an agreement meets those requirements, a party is entitled to judgment on it "notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law" (Sections 6.602(c) and 153.0071(e)).¹² In plain terms: once you sign a compliant MSA, you generally can't change your mind later and ask the court to ignore it. Read the whole document carefully before you sign, and consider having your own lawyer review it. See is mediation legally binding and do I need a lawyer for divorce mediation.

A narrow exception in custody cases

In a custody suit, a court may decline to enter judgment on an MSA if it finds that the agreement is not in the child's best interest and either:²

• a party was a victim of family violence, and that impaired the party's ability to make decisions; or
• the agreement would let a person who must register under Chapter 62 of the Code of Criminal Procedure for an offense committed at 17 or older, or who has a history or pattern of physical or sexual abuse, live with the child or have unsupervised access to the child.

That exception appears in Section 153.0071(e-1). We did not find a matching provision in the divorce section, Section 6.602.¹²

Other written settlements

Outside these Family Code rules, Chapter 154 says that if parties settle and sign a written agreement, it is "enforceable in the same manner as any other written contract," and the court may include its terms in the final decree (Section 154.071).⁴

Family violence: the right to object

Both Family Code sections let a person object to mediation because of family violence:¹²

• When. A party may file a written objection at any time before the final mediation order.
• Whose violence counts. In a divorce, the objection is based on family violence committed against the objecting party by the other party (Section 6.602(d)). In a custody suit, it can be based on family violence by another party against the objecting party or against a child who is the subject of the suit (Section 153.0071(f)).
• Effect. After an objection is filed, the case may not be referred to mediation unless a hearing is held at a party's request and the court finds that a preponderance of the evidence does not support the objection.
• Safety measures. If the case is still sent to mediation, the court must order steps to protect the physical and emotional safety of the person who objected. The order must provide that the parties are not required to have face-to-face contact and are placed in separate rooms.

The custody objection rule does not apply to suits filed under Chapter 262 of the Family Code (Section 153.0071(f)).² For more on safety, see when divorce mediation is not recommended.

Parenting plans

Texas law lets parents write an agreed parenting plan that covers conservatorship, possession of the child, and how the plan can be changed, including variations from the standard possession order. If the court finds the plan is in the child's best interest, it "shall render an order in accordance with the parenting plan." If not, it may ask the parents for a revised plan. Terms that become part of the court's order are enforced like a judgment, including by contempt, and are not enforceable as a contract (Section 153.007).² See child custody mediation.

Cost

Texas does not set a dollar fee for family mediation in these statutes. When a court appoints a mediator under Chapter 154, the court may set a reasonable fee. Unless the parties agree on how to pay, the court taxes it "as other costs of suit" (Section 154.054).⁴ Private mediators set their own fees. See our Texas divorce mediation cost page and divorce mediation cost.

Timing and residency

• Residency. A divorce suit can be maintained in Texas only if, when it is filed, one spouse has been domiciled in Texas for the preceding six months and has lived in the filing county for the preceding 90 days (Section 6.301).¹
• Waiting period. The court may not grant a divorce before the 60th day after the suit was filed (Section 6.702). The waiting period does not apply in certain family violence situations, such as when the respondent has been convicted of or received deferred adjudication for family violence against the petitioner or a member of the petitioner's household, or when the petitioner has an active protective order or emergency protection order based on family violence during the marriage.¹

See how long divorce mediation takes.

Where to go next

• How divorce mediation works
• Court-ordered mediation
• How to prepare for divorce mediation

Browse Texas mediators on our Texas pages, or get matched.

This guide is general information, not legal advice.