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A Guardian Ad Litem‘s Involvement in the Family Mediation Process

Mediation Best Practices: The Most Dangerous Hour

A Subsidized Mediation Description

Why Use Mediation?

Mediation 10 Years Later...

“A Guardian Ad Litem‘s Involvement in the Family Mediation Process “
Submitted by Jeff Kilgore, Mediator /Lawyer/ Arbitrator
June 9, 2007                                        


The job of an ad litem whether a guardian or attorney ad litem is not only challenging and rewarding it can have a long lasting effect on the children or party we are appointed to represent.

A guardian ad litem and attorney ad litem are defined in Texas Family Code Section 107.001 and the presumed duel role where an in governmental entity is petitioner is clarified in TFC section 107.0125. A guardian ad litem may be appointed by the court or upon Motion of a party and the court shall appoint a guardian ad litem and attorney ad litem in governmental cases where termination or Conservatorship are sought, Texas Family Code Sec 107.011 and 107.012. I
An attorney ad litem shall be appointed for a parent when an indigent parent responds in opposition to the termination; a parent is served by publication; an alleged father fails to register with the registry under Chapter 160 and whose identity and address are unknown and where an alleged father registers but the citation cannot be served at that or any other location known to petitioner. TFC 107.013.

Once appointed the guardian ad litem has the charge and the duty to be the personal representative of the child and to protect the child’s best interest. The duties and specifics of the duties are clearly stated in Texas Family Code Sec 107.002.  The duties are restated in different language as of September 1, 2003. A thorough reading of the new TFC Section 107needs to be done to make sure your duties and responsibilities as guardian ad litem or attorney ad litem are being performed in the proper manner.

The Guardian Ad litem has the duty to interview the child, if over four years old, and others who are likely to have significant information into a child’s history and condition This investigation should be to th extent to determine the best interest of the child including the review of medical, psychological, and school records.  TFC 107. 002;

The attorney ad litem role is slightly different although both are charged with the task of encouraging settlement and the use of alternative forms of dispute resolution TFC 107 .002 (5) and TFC 107.003(F).

An ad litem appointed to be both guardian ad litem and attorney ad litem enter into mediation looking after the best interest of the child and protecting those interests. This ad litem not only signs off on the mediated settlement agreement or may decline in signing the agreement. They also have the obligation to help craft the agreement to protect the child’s rights. The guardian ad litem is also entitled to explain the basis for the guardian opposition to an agreed order if the guardian ad litem does not agree with the terms of the proposed order TFC Section 107.002(c) 6
The involvement and ultimate recommendations of a guardian ad litem tragically sometimes had life or death consequences. Because the recommendations have life-altering implications, a judge relies largely on trust in deciding whom to appoint as a guardian. The judge, as the decision-maker, must trust the guardian to contribute to a consensus finding that would be in the child's best interest. Because trial judges have been allowed complete discretion regarding whom to appoint as a guardian ad litem and no mandatory list of qualifications now exists, each trial judge is left to his or her own judgment in deciding whom to appoint.  Our local judges appoint guardians who had attended our court's continuing legal education program for guardians on a biannual basis. All judges who must utilize a guardian /attorney ad litem come to know the lawyers practicing in their courts and the skills and motivation to be an ad litem for the children and even the appointed attorney for a parent in some family law matters.
In Texas, civil trial judges and guardians have been instructed that the guardian must "participate in the case to the extent necessary to protect the child," American Gen. Fire & CAS. Co. v. Vandewater, 907 S.W.2d 491, 493 n.2 (Tex. 1995) (emphasis added), and that "the guardian ad litem should be allowed considerable latitude in determining what ... activities are necessary to that effort," Roark v. Mother Frances Hosp., 862 S.W.2d 643, 647 (Tex. App.--Tyler 1993, writ denied).  The road map is easier to follow as these duties and obligations are set out in TFC Chapterr107.
A child becomes involved in a court action because of an injury to himself or herself, due to a divorce or S.A.PC.R. Action, a CPS case, or where a termination Action is sought. When negotiations between the parents or parties may be involved, a guardian ad litem may be needed. All areas in which a guardian ad litem is involved in behalf of the child are areas of possible conflict that could benefit from the mediation process.

All of the other parties in the dispute may have their opinions of what is best for the child; however, the guardian ad litem is the personal representative who has the responsibility to express the interests of the child.

The obligation to know your client, the child, is especially true when the ad litem is participating in the Mediation Process. Usually a client has to be present at the mediation because they are the final decision makers to the mediated settlement agreement. This is not the norm when a child is a party, or has an interest in the outcome, therefore, the guardian ad litem, as the personal representative becomes the expression of the interests, perceptions, and feelings of the child.  The guardian ad litem should be familiar with the circumstances, even the emotions of the child, for through the ad litem the child is heard in the mediation. Since the child is usually not present at the mediation, the ad litem is in the unique position to relay the child’s viewpoint while protecting their interests.

The ad litem can be a positive force in the mediation by knowing the child’s needs, reviewing pleadings, discovery, medical records or counseling reports, and reviewing discovery, if necessary, so that the ad litem is ready to discuss and express the child’s interests during mediation. The court’s order allows this information to be given to an attorney ad litem or guardian ad litem as found in the new section TFC section 107.006.

The ad litem should participate in the Opening or joint session, state the beliefs or the appropriateness of the negotiations as the mediation progresses and affects the child so that the mediated agreement reflects a child’s best interests. The ad litem should be involved so that the parties understand how their negotiations ultimately will or will not meet the needs of the child.

The ad litem should actively participate in the mediation and listen to the viewpoints so the interests, concerns, and goals of the other parties are known and considered while the ad litem expresses the best interests of the child.

The mediation, from the ad litem’s viewpoint, may focus on how to provide the child the proper and safe access to either the parents or caregivers if there is a family or kinship placement, in a manner that is best for the child. The ad litem should remain flexible in the mediation process so that the needs, the age, the relationship of the parents and possibly other parties   are all reviewed and considered while the ad litem protects the child’s interests. The ad litem should consider the risks of protracted litigation, and the effects of trial and the presentation of the child before the trier of the facts. These are important factors to consider in mediation.

The review of expert reports, medical records, school records, the effect the current circumstances of the parents and the child just prior to mediation help the ad litem to express the most current needs of the child they are obligated to protect. The child cannot speak for himself or herself; therefore, the ad litem should be prepared to speak for them.

The child can still intelligently relate their needs, desires, and interests even if they are not present in the mediation. An ad litem then could decide whether to have the child, depending on age and maturity, present and involved in the mediation. Again, the ad litem should know the child/ client well enough to determine how the child could participate in the mediation.

An adult child that has a diagnosis of mental illness still has many rights as allowed under the Texas Constitution and under the Mental Health and Safety Code. An ad litem may be involved in a variety of circumstances where marital relations are involved. All of these areas are, certainly, legal circumstances where the ad litem may be participating in a mediation process to protect the child’s interests and allowed for closure of the factors in dispute. The ad litem may have been appointed under T.R.C.P. #173, Family code 107.0013, or Probate Code #683.

Confidentiality and the ad litem report:
A guardian ad litem needs to remember that the mediation process is a confidential process when stating reasons to oppose the agreed settlement in report to the court and when testifying in court. The Attorney ad litem does not file a report with the court nor can they testify even if serving in the dual role of the guardian/attorney ad litem; however, an attorney ad litem is a participant in the mediation and is bound the confidentiality rules. Civil Practice and Remedies Code 154.073
The confidentiality allowed in mediation is one of the cornerstones of why mediation is so successful in Texas. The ad litem, if a report to the court is being prepared after mediation, should be aware of the confidentiality practiced in the mediation and should be careful in crafting the Court Report when making the report and recommendations to the court whether the Mediation lead to a mediated settlement agreement or to an impasse.
The ad litem’s job is an important one that can be challenging and rewarding. When the ad litem knows the child, reviews the pleadings, discovery, expert reports, medical records, school records and interviews the appropriate witnesses or parents the participation can aid in the parties in arriving at a mediated settlement agreement. The child will be protected and the appointed guardian ad litem duties and responsibility can be well performed and understood by the adults involved.
When the fees are submitted for payment, in the case of a private suit out side of a CPS termination case the party responsible for paying the ad litem, TFC 107.015 might even consider the fees reasonable, fair and necessary.
The ad litem can be very helpful and beneficial to the mediation process by adding a third prospective into the process and by presenting options that meet the child’s needs,
The attorneys for the parties are obligated to pursue their client’s interests, which may not always align with the best interest of the child. The ad litem can help the parties focus on the effects an agreements has on a child. The ad litem can help the mediator “reality check the parents/parties to focus on including the child needs and helping the parents place the child on an equal or higher plain than their own interests.    
Accept the duty and responsibility of an ad litem help the child or children and fully participate in the mediation process to obtain a settlement result that is in the child’s best interest while still considering the concerns and viewpoints of the parents/ parties involved.


Title 5. THE PARENT-CHILD RELATIONSHIP AND THE SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP
Subtitle A. GENERAL PROVISIONS
Chapter 107. SPECIAL APPOINTMENTS AND SOCIAL STUDIES
FAMILY CODE
Title 5. THE PARENT-CHILD RELATIONSHIP AND THE SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP
Subtitle A. GENERAL PROVISIONS
Chapter 107. SPECIAL APPOINTMENTS AND SOCIAL STUDIES
Subchapter A. COURT-ORDERED REPRESENTATION IN SUITS AFFECTING THE PARENT-CHILD RELATIONSHIP
Current through End of 2003 Regular Session
§ 107.001. Definitions.
In this chapter:
(1) "Amicus attorney" means an attorney appointed by the court in a suit, other than a suit filed by a governmental entity, whose role is to provide legal services necessary to assist the court in protecting a child's best interests rather than to provide legal services to the child.
(2) "Attorney ad litem" means an attorney who provides legal services to a person, including a child, and who owes to the person the duties of undivided loyalty, confidentiality, and competent representation.
(3) "Developmentally appropriate" means structured to account for a child's age, level of education, cultural background, and degree of language acquisition.
(4) "Dual role" means the role of an attorney who is appointed under Section 107.0125 to act as both guardian ad litem and attorney ad litem for a child in a suit filed by a governmental entity.
(5) "Guardian ad litem" means a person appointed to represent the best interests of a child. The term includes:
(A) A volunteer advocate appointed under Subchapter C;
(B) A professional, other than an attorney, who holds a relevant professional license and whose training relates to the determination of a child's best interests;
(C) An adult having the competence, training, and expertise determined by the court to be sufficient to represent the best interests of the child; or
(D) An attorney ad litem appointed to serve in the dual role.
History. Added byActs 2003, 78th Leg., ch. 262, Sec. 1, eff.9/1/2003.
Note: Former § 107.001 was renumbered as Tex. Fam. Code § 107.011 and amended byActs 2003, 78th Leg., ch. 262,Sec. 1, eff.9/1/2003.
§ 107.002. Powers and Duties of Guardian Ad Litem for Child.
(a) A guardian ad litem appointed for a child under this chapter is not a party to the suit but may:
(1) conduct an investigation to the extent that the guardian ad litem considers necessary to determine the best interests of the child ; and
(2) Obtain and review copies of the child's relevant medical, psychological, and school records as provided by Section 107.006.
(b) A guardian ad litem appointed for the child under this chapter shall:
(1) within a reasonable time after the appointment, interview:
(A) the child in a developmentally appropriate manner, if the child is four years of age or older;
(B) each person who has significant knowledge of the child's history and condition, including any foster parent of the child; and
(C) the parties to the suit;
(2) seek to elicit in a developmentally appropriate manner the child's expressed objectives of representation;
(3) consider the child's expressed objectives of representation without being bound by those objectives;
(4) encourage settlement and the use of alternative forms of dispute resolution; and
(5) Perform any specific task directed by the court.
(c) A guardian ad litem appointed for the child under this chapter is not a party to the suit but is entitled to:
(1) receive a copy of each pleading or other paper filed with the court in the case in which the guardian ad litem is appointed;
(2) receive notice of each hearing in the case;
(3) participate in case staffing by an authorized agency concerning the child;
(4) attend all legal proceedings in the case but may not call or question a witness or otherwise provide legal services unless the guardian ad litem is a licensed attorney who has been appointed in the dual role;
(5) review and sign, or decline to sign, an agreed order affecting the child; and
(6) Explain the basis for the guardian ad litem's opposition to the agreed order if the guardian ad litem does not agree to the terms of a proposed order.
(d) The court may compel the guardian ad litem to attend a trial or hearing and to testify as necessary for the proper disposition of the suit.
(e) Unless the guardian ad litem is an attorney who has been appointed in the dual role and subject to the Texas Rules of Evidence, the court shall ensure in a hearing or in a trial on the merits that a guardian ad litem has an opportunity to testify or submit a report regarding the guardian ad litem's recommendations regarding:
(1) the best interests of the child; and
(2) The bases for the guardian ad litem's recommendations.
(f) In a nonjury trial, a party may call the guardian ad litem as a witness for the purpose of cross-examination regarding the guardian's report without the guardian ad litem being listed as a witness by a party. If the guardian ad litem is not called as a witness, the court shall permit the guardian ad litem to testify in the narrative.
(g) In a contested case, the guardian ad litem shall provide copies of the guardian ad litem's report, if any, to the attorneys for the parties as directed by the court, but not later than the earlier of:
(1) the date required by the scheduling order; or
(2) The 10th day before the date of the commencement of the trial.
(h) Disclosure to the jury of the contents of a guardian ad litem's report to the court is subject to the Texas Rules of Evidence.
§ 107.003. [Renumbered from 107.014] Powers and Duties of Attorney Ad Litem for Child and Amicus Attorney.
An attorney ad litem appointed to represent a child or an amicus attorney appointed to assist the court:
(1) shall:
(A) subject to Rule 4.04, Texas Disciplinary Rules of Professional Conduct, and within a reasonable time after the appointment, interview:
(i) the child in a developmentally appropriate manner, if the child is four years of age or older;
(ii) each person who has significant knowledge of the child's history and condition, including any foster parent of the child; and
(iii) the parties to the suit;
(B) investigate the facts of the case to the extent the attorney considers appropriate;
(C) obtain and review copies of relevant records relating to the child as provided by Section 107.006;
(D) participate in the conduct of the litigation to the same extent as an attorney for a party;
(E) take any action consistent with the child's interests that the attorney considers necessary to expedite the proceedings; and
(F) encourage settlement and the use of alternative forms of dispute resolution;
(2) must be trained in child advocacy or have experience determined by the court to be equivalent to that training; and
(3) is entitled to:
(A) receive a copy of each pleading or other paper filed with the court;
(B) receive notice of each hearing in the suit;
(C) participate in any case staffing concerning the child conducted by an authorized agency; and
(D) Attend all legal proceedings in the suit.
§ 107.004. Additional Duties of Attorney Ad Litem for Child.
Except as otherwise provided by this chapter, the attorney ad litem appointed for a child shall:
(1) seek to elicit in a developmentally appropriate manner the child's expressed objectives of representation;
(2) advise the child;
(3) provide guidance to the child;
(4) represent the child's expressed objectives of representation and follow the child's expressed objectives of representation during the course of litigation if the attorney ad litem determines that the child is competent to understand the nature of an attorney-client relationship and has formed that relationship with the attorney ad litem;
(5) consider the impact on the child in formulating the attorney ad litem's presentation of the child's expressed objectives of representation to the court; and
(6) become familiar with:
(A) the American Bar Association's standards of practice for attorneys who represent children in abuse and neglect cases; and
(B) The suggested amendments to those standards adopted by the National Association of Counsel for Children.
§ 107.006. Access to Child and Information Relating To Child.
(a) Except as provided by Subsection (c), in conjunction with an appointment under this chapter, other than an appointment of an attorney ad litem for an adult or a parent, the court shall issue an order authorizing the attorney ad litem, guardian ad litem for the child, or amicus attorney to have immediate access to:
(1) the child; and
(2) Any otherwise privileged or confidential information relating to the child.
(b) Without requiring a further order or release, the custodian of any relevant records relating to the child, including records regarding social services, drug and alcohol treatment, or medical or mental health evaluation or treatment of the child, law enforcement records, school records, records of a probate or court proceeding, and records of a trust or account for which the child is a beneficiary, shall provide access to a person authorized to access the records under Subsection (a).
(c) A mental health record of a child at least 12 years of age that is privileged or confidential under other law may be released to a person appointed under Subsection (a) only in accordance with the other law
§ 107.007. Attorney Work Product and Testimony.
(a) An attorney ad litem, an attorney serving in the dual role, or an amicus attorney may not:
(1) be compelled to produce attorney work product developed during the appointment as an attorney;
(2) be required to disclose the source of any information;
(3) submit a report into evidence; or
(4) Testify in court except as authorized by Rule 3.08, Texas Disciplinary Rules of Professional Conduct.
(b) Subsection (a) does not apply to the duty of an attorney to report child abuse or neglect under Section 261.101.
§ 107.011. [Renumbered from 107.001] Mandatory Appointment of Guardian Ad Litem.
(a) Except as otherwise provided by this subchapter, in a suit filed by a governmental entity seeking termination of the parent-child relationship or the appointment of a conservator for a child, the court shall appoint a guardian ad litem to represent the best interests of the child immediately after the filing of the petition but before the full adversary hearing.
(b) The guardian ad litem appointed for a child under this section may be:
(1) a charitable organization composed of volunteer advocates or an individual volunteer advocate appointed under Subchapter C;
(2) an adult having the competence, training, and expertise determined by the court to be sufficient to represent the best interests of the child; or
(3) An attorney appointed in the dual role .
(c) The court may not appoint a guardian ad litem in a suit filed by a governmental entity if an attorney is appointed in the dual role unless the court appoints another person to serve as guardian ad litem for the child and restricts the role of the attorney to acting as an attorney ad litem for the child.
(d) The court may appoint an attorney to serve as guardian ad litem for a child without appointing the attorney to serve in the dual role only if the attorney is specifically appointed to serve only in the role of guardian ad litem. An attorney appointed solely as a guardian ad litem:
(1) may take only those actions that may be taken by a non attorney guardian ad litem; and
(2) may not:
(A) perform legal services in the case; or
(B) Take any action that is restricted to a licensed attorney, including engaging in discovery other than as a witness, making opening and closing statements, or examining witnesses.
§ 107.012. Mandatory Appointment of Attorney Ad Litem for Child.
In a suit filed by a governmental entity requesting termination of the parent-child relationship or to be named conservator of a child, the court shall appoint an attorney ad litem to represent the interests of the child immediately after the filing, but before the full adversary hearing, to ensure adequate representation of the child.
§ 107.0125. Appointment of Attorney in Dual Role.
(a) In order to comply with the mandatory appointment of a guardian ad litem under Section 107.011 and the mandatory appointment of an attorney ad litem under Section 107.012, the court may appoint an attorney to serve in the dual role.
(b) If the court appoints an attorney to serve in the dual role under this section, the court may at any time during the pendency of the suit appoint another person to serve as guardian ad litem for the child and restrict the attorney to acting as an attorney ad litem for the child.
(c) An attorney appointed to serve in the dual role may request the court to appoint another person to serve as guardian ad litem for the child. If the court grants the attorney's request, the attorney shall serve only as the attorney ad litem for the child.
(d) Unless the court appoints another person as guardian ad litem in a suit filed by a governmental entity, an appointment of an attorney to serve as an attorney ad litem in a suit filed by a governmental entity is an appointment to serve in the dual role regardless of the terminology used in the appointing order.
§ 107.013. Mandatory Appointment of Attorney Ad Litem for Parent.
(a) In a suit filed by a governmental entity in which termination of the parent-child relationship is requested, the court shall appoint an attorney ad litem to represent the interests of:
(1) an indigent parent of the child who responds in opposition to the termination;
(2) a parent served by citation by publication;
(3) an alleged father who failed to register with the registry under Chapter 160 and whose identity or location is unknown; and
(4) an alleged father who registered with the paternity registry under Chapter 160,[1] but the petitioner's attempt to personally serve citation at the address provided to the registry and at any other address for the alleged father known by the petitioner has been unsuccessful.
(b) If both parents of the child are entitled to the appointment of an attorney ad litem under this section and the court finds that the interests of the parents are not in conflict, the court may appoint an attorney ad litem to represent the interests of both parents.
§ 107.021. [Renumbered from 107.011] Discretionary Appointments.
(a) In a suit in which the best interests of a child are at issue, other than a suit filed by a governmental entity, the court may appoint:
(1) an amicus attorney;
(2) an attorney ad litem; or
(3) A guardian ad litem.
(b) In determining whether to make an appointment under this section, the court:
(1) shall:
(A) give due consideration to the ability of the parties to pay reasonable fees to the appointee; and
(B) balance the child's interests against the cost to the parties that would result from an appointment by taking into consideration the cost of available alternatives for resolving issues without making an appointment;
(2) may make an appointment only if the court finds that the appointment is necessary to ensure the determination of the best interests of the child; and
(3) May not require a person appointed under this section to serve without reasonable compensation for the services rendered by the person.
§ 107.015. Attorney Fees.
(a) An attorney appointed under this chapter to serve as an attorney ad litem for a child, an attorney in the dual role, or an attorney ad litem for a parent is entitled to reasonable fees and expenses in the amount set by the court to be paid by the parents of the child unless the parents are indigent.
(b) If the court determines that one or more of the parties are able to defray the fees and expenses of an attorney ad litem or guardian ad litem for the child as determined by the reasonable and customary fees for similar services in the county of jurisdiction, the fees and expenses may be ordered paid by one or more of those parties, or the court may order one or more of those parties, prior to final hearing, to pay the sums into the registry of the court or into an account authorized by the court for the use and benefit of the payee on order of the court. The sums may be taxed as costs to be assessed against one or more of the parties.
(c) If indigency of the parents is shown, an attorney ad litem appointed to represent a child or parent in a suit filed by a governmental entity in which termination of the parent-child relationship is requested shall be paid from the general funds of the county according to the fee schedule that applies to an attorney appointed to represent a child in a suit under Title 3 as provided by Chapter 51. The court may not award attorney ad litem fees under this chapter against the state, a state agency, or a political subdivision of the state except as provided by this subsection.
(d) A person appointed as a guardian ad litem or attorney ad litem shall complete and submit to the court a voucher or claim for payment that lists the fees charged and hours worked by the guardian ad litem or attorney ad litem. Information submitted under this section is subject to disclosure under Chapter 552, Government Code..

CIVIL PRACTICE AND REMEDIES CODE
Title 7. ALTERNATE METHODS OF DISPUTE RESOLUTION
Chapter 154. ALTERNATIVE DISPUTE RESOLUTION PROCEDURES
Subchapter D. MISCELLANEOUS PROVISIONS
Current through End of 2001 Regular Session
§ 154.073. Confidentiality of Certain Records and Communications.
(a) Except as provided by Subsections (c), (d), (e) and (f), a communication relating to the subject matter of any civil or criminal dispute made by a participant in an alternative dispute resolution procedure, whether before or after the institution of formal judicial proceedings, is confidential, is not subject to disclosure, and may not be used as evidence against the participant in any judicial or administrative proceeding.
(b) Any record made at an alternative dispute resolution procedure is confidential, and the participants or the third party facilitating the procedure may not be required to testify in any proceedings relating to or arising out of the matter in dispute or be subject to process requiring disclosure of confidential information or data relating to or arising out of the matter in dispute.
(c) An oral communication or written material used in or made a part of an alternative dispute resolution procedure is admissible or discoverable if it is admissible or discoverable independent of the procedure.
(d) A final written agreement to which a governmental body, as defined by Section 552.003, Government Code, is a signatory that is reached as a result of a dispute resolution procedure conducted under this chapter is subject to or excepted from required disclosure in accordance with Chapter 552, Government Code.
(e) If this section conflicts with other legal requirements for disclosure of communications or materials, the issue of confidentiality may be presented to the court having jurisdiction of the proceedings to determine, in camera, whether the facts, circumstances, and context of the communications or materials sought to be disclosed warrant a protective order of the court or whether the communications or materials are subject to disclosure.
(f) This section does not affect the duty to report abuse or neglect under Subchapter B, Chapter 261, Family Code, and abuse, exploitation, or neglect under Subchapter C, Chapter 48, and Human Resources Code.

Mediation Best Practices: The Most Dangerous Hour

“Mediation Best Practices: The Most Dangerous Hour”
Edited by Jeff Kilgore Mediator, Lawyer and Arbitrator
With permission of Tom Allen Attorney at Law
February 16, 2009

My understanding is that most of you here today are mediators.  How many people here today, whether you are a mediator or not regularly assist clients in mediation? How many regularly do both?

Tom Allen is not a mediator. He is a litigator — or, as he prefers to say — a Resolver of Disputes. The disputes usually have cause numbers, but not always. He handled only commercial disputes — no hurt bodies, no family law. The view point concerning Family law are added by Jeff Kilgore

Although Tom has participated in many, many mediations, he is not a mediator. Therefore, between the two authors   we will attempt to prescribe the “best practices” of a mediated settlement agreement applicable to attorneys and to help guide mediators when the mediated settlement agreement is being drafted.

Comment from Tom Allen.  Mostly as a result of mediation I attend earlier last year— I wrote a paper called “Mediation’s Most Dangerous Hour.”

I wrote the paper for litigators, not mediators. I sent the paper to the Texas Bar Journal to see if they want to publish it. I don’t know if they will publish it or not, but Jeff Kilgore heard me give a talk to the Houston Bar ADR section last October and he decided I may have something of value to share with you. (If you conclude that I have wasted your time, please blame Jeff, not me.)

Bottom line: Much of what will be discussed today is not your job as mediator. But we think there is some utility in reminding you about one particular set of pressures on the lawyers at your mediations.

My comments this morning concern mediations that are “successful” — that is, mediations that have not ended with the mediator’s declaration of an impasse.

Ø    “Mediation’s Most Dangerous Hour.” Which hour of mediation is the most dangerous? The last hour, of course.

Ø    What has happened in the 3 (or 10) hours prior to the last hour? Negotiations discussions, saber waiving, emotional outburst and finally a settlement.

What happens in the last hour? Writing the agreement.

> What’s the goal of the writing? AN ENFORCEABLE AGREEMENT THAT WILL RESOLVE THE DISPUTE .and under Texas law and the Family Code one that is irrevocable by the parties.

> So, in the last hour of mediation, there is a fundamental shift in everyone’s
assigned tasks. Mediators: In the last hour, what’s your job?
Lawyers: In the last hour, what’s your job?

> If you accept my thesis that the last hour of mediation is the most dangerous, dangerous for whom? .....  Not the mediator.

> Who recognizes this statute? TEX. CIV. PRAC. & REM. CODE § 154.055(a) (immunizing mediators from almost all civil liability for acts or omissions relating to mediation).

> Why is the last hour the most dangerous?
The client leaves the mediation believing that the dispute has been resolved.
Why does the client believe the dispute has been resolved?
1. The lawyer told the client the dispute has been resolved.
2. There’s a piece of paper signed by both sides that says the dispute has been
resolved. The “Memorandum of Mediated Settlement Agreement.”
> Is it possible that the dispute has not been resolved?  How could that happen?
> One party reneges on the deal.
> But the reneging party signed the Mediated Settlement Agreement, right?
> So how can he renege, successfully?
> Because the Memorandum of Settlement is not enforceable.
> Back up: Let me remind you when and where the last hour is taking place.

Look again at a scene you have seen countless times.

Remember, my comments are addressed to the attorneys who are participating in mediation, not the mediator.
1. The energy that filled the room during the opening session is fading faster than the setting sun. You are dog fired, having bailed out of bed at 4:00 a.m. to polish your opening statement. (physical exhaustion of all participants)
2. The trash receptacles overflow with crumpled paper, empty soft drink cans, and “gourmet” leftovers served earlier in the day. (physical environment is deteriorating, especially if a/c shuts down for the day)
3. Some sort of compromise seems to be emerging, although no one but the mediator feels good about it. Your client /rep are equal parts skeptical and fidgety. (client probably is disappointed and maybe worried about reporting back to his her parents, significant other or children or superiors (or his spouse) the party is ready to leave the scene.
4. In the ancient tradition of detis at machina, the mediator taps on your conference room door and sweeps in with new notes, a relieved smile, and crow’s feet you’d swear weren’t there this morning. They’ve agreed, she/he announces.
5. The mediator presents   a form on which to draft the settlement memo. Victory is at hand. You and your cell mate, either the other disputant or your client and the mediator maybe start thinking about a cool and refreshing beverage (at separate establishments).

Sum up: Disputants and their attorneys are:

PHYSICALLY TIRED - MAYBE VERY TIRED - MAYBE HUNGRY.
PROBABLY A LITTLE CLAUSTROPHOBIC - Just get me out of here.
PROBABLY DIS PPOIN TED.
POSSIBLY WORRIED ABOUT RAMIFICATIONS.
RELIEVED; STARTING TO RELAX.
THINKING ABOUT OTHER MATTERS; MAKING OTHER PLANS.

Under these circumstances, is the lawyer likely to perform his or her best legal work?
And yet, at this moment what is the lawyer supposed to do?


DRAFT, OR HELP DRAFT, OR AT LEAST APPROVE MEDIATED   SETTLEMENT MEMORANDUM.

How many of you are aware of a fully executed memorandum of settlement that ultimately proved to be unenforceable or otherwise inadequate?
What happened? Why was the agreement inadequate?
Some reasons why a mediated settlement memoranda may not be adequate:

Reason No. 1 that a memorandum of settlement maybe inadequate: The phrase “formal settlement documents to follow” covers up a failure to reach an agreement on all essential terms.
This failure may be intentional or not.
> Mediators: What % of your mediations does not contemplate the execution of any document other than the memorandum of settlement and some sort of dismissal order?
> The known failure to agree upon every material term. This is said to be very common in Congress and in our state legislatures:
“In drafting the Loft Law, the legislature was deliberately vague in its use of the term ‘residential occupant’ rather than ‘tenant’ for two reasons. The first was the difficulty of reaching a consensus among the various interest groups involved in the legislation .2’ Dworkin
v. Duncan, 456 N.Y.S, 2d 939, 944 (N.Y. Civ. Ct. 1982).

In other words, at least one of the attorneys at the mediation recognized that the settlement memorandum did not constitute a complete agreement, but he crossed his fingers and hoped that the matter would clear itself up when the parties executed the “formal” settlement document. Why would any attorney do that?

a. He believed in good faith that, on a new day with rested hearts and minds, the parties would agree.
b. Thought he could slip it by the other side, even in the formal settlement agreement.
c. Sloth.
d. Takes too much time, which brings us to the ANIMAL CRACKERS!
Liberto v. D. F Stauffer Biscuit Co. Inc. began with Liberto’s 1996 suit against Stauffer for infringement of a registered package design for animal crackers. In 1998, the parties executed a settlement agreement stating that Liberto would dismiss his suit and grant Stauffer an exclusive license for use of the striped design.
The agreement, however, “contemplated that the parties would continue to negotiate
‘the specific terms of [the] license to be agreed upon.” The parties negotiated, sure enough, but never agreed on the license terms.
Several years and machinations later, the Fifth Circuit concluded that the 1998 settlement document was the dreaded (and unenforceable) “agreement to agree.” Liberto, who had hoped to collect damages for Stauffer’s failure to pay royalties, went home empty- handed. 441 F.3d 318 (5th Cir. 2006).
Picture the face of Liberto’s lawyer. Now, picture the face of Liberto’s lawyer on the box — behind the bars.
I have some sympathy for Liberto’s lawyer: Drafting a license agreement at mediation sounds tough to me. What is a solution to that? Two-day mediation.
I have less sympathy for the lawyers in Martin v. Black.’ Here’s what happened:
After a lengthy mediation, the parties in Martin v. Black outlined the terms of a settlement on “two handwritten documents referred to as ‘term sheets’ which were signed by the parties and their counsel and or advisors.” One sheet, however, stated that the “parties’ understandings [were] subject to securing documentation satisfactory to the parties.”
909 S.W.2d 192 (Tex. App.—Houston [14th Dist.} 1995, writ denied).  

Satisfaction apparently eluded Martin, who amended her petition and returned to the battlefield. When her opponents filed a “Motion to Enforce Settlement Agreement,” Martin responded by swearing that she “did not intend for the handwritten ‘term sheets’ executed at approximately midnight at the conclusion of the second day of mediation ... to constitute final and binding settlement agreements.” The trial court was unimpressed and granted the motion. The court of appeals reversed, explaining that “we cannot say as a matter of law whether the parties intended the formal documentation to be a condition precedent to a final settlement agreement or merely a memorial of any already enforceable settlement agreement.”

The Dallas court seemed to reach the opposite result in Lerer v. Lerer, which affirmed a summary judgment enforcing a mediated settlement agreement, despite affidavit testimony that one party did not believe the agreement was binding. Although the settlements in both Martin and Lerer cases contemplated the post-mediation execution of additional documents, the Lerer agreement may be distinguished from the Marlin agreement (maybe) by the former’s lack of any indication that it was “subject to” the documents to come.2 Still, Saint Prudence strongly cautions against anything that looks like a “subject to” provision in a mediated settlement agreement
.
The Golden Belt-and-Suspenders Award goes to the drafter of the mediated settlement agreement construed in Castano v. San Felipe Agric., Mfg., & Irrigation Co., 147 S.W.3d 444 (Tex. App.—San Antonio 2004). Although the agreement stated that “final documentation’ and ‘further documents’ were necessary to reach a ‘closing,” it also provided that “notwithstanding such additional documents the parties confirm that this is a written settlement agreement as contemplated by Section 154.071 of the Texas

In the case of a Family Law mediation reference to the Family Code provision Section 153. that requires the irrevocable nature a mediated agreement be bolded and in (good practice 16 point type) be included in the agreement before the signature lines.
“THIS AGREEMENT IS IRREVOCABLE”

2 Accord, Hardman v. Dault, 2 S.W.3d 378, 381 (Tex. App.—San Antonio 1999, no pet. rev.) (affirming summary judgment enforcing settlement agreement contemplating ‘final
documents” but containing no “subject to’ language’).Civil Practice and Remedies Code.” The San Antonio court affirmed the summary judgment enforcing the agreement.

Shorthand for Reason No. 1 that a memorandum may be inadequate: RSTTF (“Remaining Settlement Terms to Follow”).

Reason No. 2 that a memorandum of settlement may be inadequate: SOOFE
(“Settlement Depends on Future Event”). For example, Plaintiff maybe insisting at the mediation that he won’t eat more than 50% of his loss, but Defendant either can’t or won’t cough up enough cash to break 30%. It’s late (isn’t it always?), and the mediator has used the “I” (impasse) word twice.

Then Defendant remembers it has a third-party deal that will close in a few months that should generate enough nickels to pay Plaintiff 65% of its loss. The compromise is obvious, but the risk should be, too. What if the deal doesn’t close? Worse, what if Plaintiff concludes the deal didn’t close because Defendant had a little “discussion” with the third party?
Even in the absence of bad faith, a settlement that turns on a future event may be an ill-advised path out of the mediator’s conference room.

The plaintiff in Malatt v. C & R Refrigeration, 179 S.W.3d 152 (Tex. App.—Tyler 2005, no pet. rev.) demanded the return of its deposit toward C & R’s manufacture of a super- fast freezer. When additional payments went AWOL, C & R ceased production of the machine and kept the deposit. The parties signed a settlement agreement requiring C & R to “use its best efforts to market and sell [the freezer], in an expeditious and commercially reasonable manner.” When the freezer was sold, the parties agreed, C & R would refund the deposit “immediately.”
The sale, however, was less than super-fast. In fact, the freezer remained unsold after three years of what the trial court found to be the “best efforts” required by the settlement agreement. Since the freezer’s sale was a condition precedent to C & R’s obligation to return the deposit, the trial court concluded, the deposit need not be returned. Furthermore, the court decided that the sale of the freezer had become a “commercial impracticability,” and it declared C & R discharged from the obligations of the settlement agreement. The Court of Appeals affirmed.

Look to Longfellow for this last-hour rule: “Trust no future events, howe’er pleasant!” From Henry Wadsworth Longfellow, “A Psalm of Life,” in THE COMPLETE POETICAL WORKS OF LONGFELLOW (1893).


Reason No. 3 that a memorandum of settlement may be inadequate: The scope of the release is ambiguous.
The scope of a release in a memorandum of settlement is not your job. But have compassion for the lawyers in your mediation who are parsing a settlement memorandum’s release language. To say the least, the Texas courts sometimes construe releases in a manner that, well, you might not expect.
Apparently, every Texas court of appeals has a word processing macro for the following text:
“To release effectively a claim in Texas, the instrument must ‘mention’ the claim to be released. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex. 1991). Even if the claims exist when the release is executed, any claims not clearly within the subject matter of the release is not discharged. Id.”
Thanks very much, but, as a legal guide, that quote and three bucks will buy you a latte and not much else.
Nine years after Brady, perhaps sensing that “mention” comes up a little short in the Precision Department, the Supreme Court took another run at releases in Keck, Mahin & Cate v. National Union Fire Ins. Co.5 There the Court observed that “Brady simply holds that the release must ‘mention! the claim to be effective. It does not require that the parties anticipate and identify, each potential cause of action relating to the release’s subject matter.” Although Keck reiterated that a claim is not released unless it is “mentioned” and explained what “mention” is not, the Court never really said what “mention” is in the context of a release.

It should be no surprise, then, that the lower courts continue to wrestle with settlement agreements that recite the release of “all claims.” Subsequent cases have hammered home the rule that, in the absence of a “mention,” even the broadest possible release may not be effective. See, e.g., Davis v, American Bank of Commerce, No. 03-04-00482-CV, 2005 WE 1489751, at *3 (Tex. App.—Austin June 23, 2005, rev. denied) (mutual release explicitly “intended to be of the broadest nature and to be dispositive of all matters involving [the parties], known or unknown” found to be ambiguous).

Other recent cases illustrating that the scope of releases continues to be problematic:
Kalyanaram v. Burck, No. 08-05-00132-CV, 2006 WE 1559230 at *6 (Tex. App.—E1 Paso June 8, 2006, no pet. hist.) (holding that release of all civil claims ... aris[ing] out of the subject matter of [the settled) litigation” included release of later claim for malicious prosecution).

Biggs v. ABCO Props, hic., No. 13-03-00398-CV, 2006 WE 414919 at *3 (Tex. App.—Corpus Christi Feb. 23, 2006, Rule 53.7(f) motion granted) (holding that lender’s release from “all claims ... arising out of or in any manner relating to any of the commercial agreements and/or relationships existing among or between any of them” did not “mention” guaranty and, therefore, did not release guarantor).
Reason No. I that a memorandum of settlement may be inadequate: RSTTF
20 S.W.3C1 692 (Tex. 2000).
(“remaining settlement terms to follow”)
Reason No. 2: SDOFE
(“settlement depends on future event”)
Reason No. 3: The scope of the release is ambiguous.

This can be very treacherous for the lawyers.
What as mediators can you do — if anything — to make it less treacherous?

A Subsidized Mediation Description

GALVESTON COUNTY MEDIATION SYSTEM

Presented by Jeff Kilgore - 2/25/99
The Kilgore Mediation Center
2020 Broadway
Galveston, Texas 77550
409-762-1758
Fax: 409-765-6004

1.    ADR Act effective September 19, 1987, locally in title 7 of the Civil Practice and Remedies Code.

2.    A mediation as a form of alternative dispute resolution is widely accepted by the judges in our County.

3.    Pursuant to Section 152.004, the County Commissioner’s Court authorized the collection of the $10.00 in every civil case filed and the mediation services of Galveston County was established January 27, 1992.

4.    The County Commissioner’s extend mediation service board for a indefinite period 10/25/93.

5.    Mediation is a useful and successful tool and is employed by many attorneys, parties and/or judges here in Galveston County.

6.    The topic today is the Subsidized Mediations Program.

7.    Financially aided mediations are now being used for family mediations, in the past in juvenile case mediations and in civil mediations.  The Mediation Service Plan provides that a mediator can receive up to $125.00 per hour based upon the party’s ability to pay, the annual salaries, the number of children within a family unit.  The formula used is not only for family mediations but also for civil mediations.  Any one making less than $20,000 pays a flat $10.00, and the other party either pays a maximum of $62.50 or a reduced fee based upon whether they submit an affidavit and request for financially aided mediations. Depending on income and number of family members a party could qualify for some subsidy while earning up tp $39,000.00.

8.    A mediation fees and subsidy schedule and worksheet with examples to use with family and civil financially aided mediations explaining the sliding scale to be used is available in the law library and on disc.

9.    The Galveston County Mediation Services Board encourages the use of financially aided mediations when it is appropriate.  The only time it is not encouraged is when both the parties are a corporate entity or a corporate entity and an insurance company.  If one party qualifies and the other party is a corporate entity or insurance company, the corporate entity/insurance company would pay the $62.50 per hour maximum.

10.    There is an affidavit that the party requesting financially aided mediation must fill out.  The first step is to fill out a Motion for Subsidized ADR Procedures and submit it along with the Affidavit.  If possible, an Agreed Order on Motion for Subsidized Alternative Dispute Resolution Procedures should be filed.  A party that does not want to request a subsidized mediation does not have to fill out an affidavit or submit financial data.  That party would receive the benefit of the maximum per hour rate so they should agree to the subsidized mediation.

11.    The judge then signs the agreed order, appoints the mediator and the parties work with the mediator to establish dates for the mediation to progress.  The mediator then submits a claim to the presiding judge of the court where the case is pending and then it is submitted to the County Auditor’s Office located at Church Street and 23rd Street.  The forms that I have shown you, as well as Agreed Order on Motion for Subsidized Mediation both in family law CPS cases and civil cases are now available on a disk that is being provided as a service of the Mediation Association of Galveston County.  These disks are in a Word Perfect format and may be picked up at my office, 2020 Broadway, the Galveston County Law Library,

12.    The Mediation Association is providing these forms on disks in order that they may be in your computer so you can expedite the filling out of the forms and filling them so that the system can be utilized by more people.  It is to the advantage of your clients to use the system and we hope that the forms provided on the disk are of benefit to you.  I also have some disks here today.

13.    The Galveston County Mediation Services Board Fund current balance is: $__________.  This fund has been established to promote the use of mediation by providing all parties an opportunity to have an option to submit their disputes to mediation prior to trial.

14.    With the small amount of time it takes to fill out and submit the paperwork, you can provide a service to your clients.

15.    I will mention that the only mediators that are eligible to receive referrals under the financially aided mediation system are mediators that belong to the Galveston Mediation Association and if you are an attorney, you must also belong to the Galveston Bar Association.  The mediator also has to have taken the Basic 40 hour Mediation Course and if a Family Law Mediator, also will have taken the 24 hour Family Mediation Course.

16.    Added info Nov 2000 .CPS mediations are covered by the fund . A party must qualify for the subsidized fee and obtain an order at least 10 days before the PRE TRIAL mediation. The fees ordered to be paid must be paid to the Court and Pretrial Services, 1922 Sealy (the old TEC building ) and proof sent to the mediator of the subsidized order and payment of the fees. Provisions for under payment and over payment are included in the CPS Subsidized order.

Why Use Mediation?

The use of a neutral third party to facilitate a conflict resolution offers you the opportunity to avoid the burden of protracted litigation and expense and risk of trial. Mediation also allows parties who work and interact in our community to resolve issues while maintaining relationships.

I have 28 years of experience in trial, negotiations, and settlement to serve you and your need to resolve conflict. I was first trained as a mediator in 1991 and have conducted over 275 mediations.

We can help in the resolution of business, contract, construction, family, injury, tort, real estate and multiparty disputes.

Mediation 10 Years Later

Ten Years ago…February 1997… I started concentrating my practice on Mediation and Arbitration to better serve disputants in conflict. The mediation process offers an opportunity for the disputants to reach creative agreements not always afforded to them in a trial setting.

I have now served as mediator in over 700 mediations and have served in approximately 40 arbitrations as a panel member or chair of the panel. I have been invited to serve on the chairperson panel of the NASD and NYSE.I also am on the International Chamber of Commerce Panel.

I recently have been added to the Binding Arbitration panel by the Texas State Comptroller to hear CAD/ homeowner valuation disputes in the Gulf Coast Area including Galveston, Houston and surrounding Counties, Capital Region, Coastal Plains Region and the Dallas Ft Worth Metroplex Region. I have reinstated my real estate license as part of this process.

Some of you may have seen that our building is up for sale. This is not an indication of me stopping my mediation or arbitration practice .I will still maintain an office in Galveston and still offer to do mediations in Houston at the Greenway Mediation Center or in the Clear Lake Area, or in your offices, if everyone agrees to the location. I believe in the mediation process.

I have served in commercial, construction, family, insurance, personal injury, real estate, probate, building code disputes and consumer disputes and DTPA issues as either mediator or arbitrator. I also serve as a special Hearing Officer in certain UTMB construction disputes.

I am currently serving as the chairperson of the Galveston County Mediation Board, (for subsidized mediations); I am the treasure of the Mediators’ Association of Galveston, and I am the Secretary of the State Bar Association ADR section and serve on its council.

I help teach The 40 hour Mediation course at the U of H, AA White Dispute Resolution Center and am a Co- Director of the Advanced 32 hour Family Mediation Course taught at the U of H Law Center. I have spoken on mediation at Bar meetings and Civic meetings.

I still have some client and attend CLE to keep current in area of the law including Family law, Construction Law, Real Estate Law, and Litigation, as well as Mediation and Arbitration topics.

The variety of my practice helps me understand your clients and their issues. I believe the parties are in control of their own settlements, with the advice of the attorneys. When faced with the risks of moving forward they can make informed decisions and look at their options suggested by their attorneys or by me as their mediator.

Most of the courts today believe that mediation is a process that should be attempted before trial. In family cases and probate, cases the parties are often required to participate in this when the parties’ emotions are possibly controlling their ability to come to a settlement decision rationally.   Since there is more of a chance of on going relationships surviving through the mediation process, I can help the disputants see each other’s viewpoint more clearly.

Please call or contact:
Jeff Kilgore at 409-939-6924
Galveston at 2501 65th Street, Suite B
e-mail This e-mail address is being protected from spambots. You need JavaScript enabled to view it