Science, Technology, Engineering and Math. Scary topics for many students. Nepris, an online platform that makes it possible for K12 teachers and students to connect with industry experts, brings real world relevance and improves student engagement in STEM subjects. 1
and the Lawyer’s children & spouse have no protection from personal estate planning. Continue reading
After three terms on the Court as its first judge, the Hon. W.R. “Randy” Savage retired and the Hon. Linda Bayless was sworn in on January 1, 2015 as Judge of the Burnet County Court-at-law. Many thanks must go out to Judge Savage for getting that court organized from scratch and presiding over it in good fashion. Continue reading
I am grateful for the continued opportunity to serve through the processes of mediation and other methods of dispute resolution. The year 2014 was successful for me in being able to keep my hand in the legal/judicial system, and for 94.8% of the 66 cases I mediated. We engaged in the process for a total of 401.75 hours, or an average of just over six hours per case. Continue reading
Have you ever given much thought to receiverships in business wind-downs. Continue reading
Don’t view the photos on a full stomach. DO view them with your child, your grandchild, your (fill in the blank) if there is ANY possibility of drug usage, even “simple experimentation” with “harmless” drugs. Continue reading
This is a concept that for some time while on the bench I thought to be a good idea. It still seems appropriate for many instances. Continue reading
This has been an exciting and interesting year for me after leaving the district court bench just a year ago. Mediation has become a passion for me and I am so grateful for the many opportunities to have assisted many people, their attorneys, and the courts. Continue reading
In In re Lee, 2013 Tex. LEXIS 809 (Tex. Sept. 27, 2013) 1 the Texas Supreme Court in the preamble to the opinion states
“If a mediated settlement agreement meets [certain requirements], a party is entitled to judgment on the mediated settlement agreement notwithstanding . . . another rule of law.”Tex. Fam. Code § 153.0071(e) (emphasis added). We are called upon today to determine whether a trial court abuses its discretion in refusing to enter judgment on a statutorily compliant mediated settlement agreement (MSA) based on an inquiry into whether the MSA was in a child’s best interest. We hold that this language means what it says: a trial court may not deny a motion to enter judgment on a properly executed MSA on such grounds. Accordingly, we conditionally grant the writ of mandamus. (emphasis added)
The Court framed the issue thusly:
The sole issue before us today is whether a trial court presented with a request for entry of judgment on a validly executed MSA may deny a motion to enter judgment based on a best interest inquiry.6 While Texas trial courts have numerous tools at their disposal to safeguard children’s welfare, the Legislature has clearly directed that, subject to a very narrow exception involving family violence, denial of a motion to enter judgment on an MSA based on a best interest determination, where that MSA meets the statutory requirements of section 153.0071(d) of the Texas Family Code, is not one of those tools. Accordingly, the trial court in this case abused its discretion by denying entry of judgment on the MSA and setting the matter for trial.7
In re Lee, 2013 Tex. LEXIS 809, 9 (Tex. Sept. 27, 2013)
Suffice it to say that there were grounds alleged upon which a trial court could reasonably conclude that enforcing the MSA was not in the best interest of the child. Nevertheless, with this bright-line ruling it is clear that even the most egregious circumstance calling for a different “best interest” result will not deter enforcement of the MSA. What then, does this mean?
It means that in a mediation, if all other prerequisites for a viable MSA are met, parents can agree to terms calculated to result in harm to a child. A couple of questions come to mind. First, does the mediator have ethical issues resulting from consummation of the MSA if he believes that harm is likely to result to a child? Does he have an obligation to make a referral to the Texas Dept of Family & Protective Services?
If TDFPS learns of the agreement, could there be sufficient grounds from the MSA alone for a removal — after a hearing or even an emergency removal?
Questions. Perhaps answers will follow. In the meanwhile, the opinion is worth reading for its extensive analysis and reasoning.
- Lexis cite. Also see http://www.supreme.courts.state.tx.us/historical/2013/sep/110732.pdf ↩
That line is ever so true in dispute resolution. I have had mediations begin with the indication from one or both sides that “we’re just here because we have to mediate first in order to get a trial setting.” That is the requirement in the local courts, and in many across Texas.
Undaunted, I flail away at the issues and obstacles until — almost always — the dispute is resolved. I am convinced that most people really do want their controversy resolved. There may be a lot of reasons for the lawsuit in the first place, but in time there come to be far more reasons to settle than to continue.
Litigation is a participation sport, so to speak. The client has to be involved and do a lot of work. When I was in practice I was quick to tell the client that they had to be heavily involved and not to expect to just toss their file on my desk and wait to show up at the trial. The work, anxiety, expense and, most of all, the uncertainty, are reasons to mediate.
The work is not over when you come for help in resolving your dispute, but there is nothing more satisfying than to walk away at the end of the day with a signed, binding agreement in hand and the uncertainty has evaporated.