Texas Bar Journal • May 2025

Drive-By Mediation

Just a checkbox or a genuine resolution tool?

Written by John R. Millard

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When we talk about “drive-by” mediation, let’s be clear—we’re not talking about anything involving a moving vehicle or a crime scene. Instead, we’re referring to a streamlined, often misunderstood, process of family law mediation that can be as quick as it sounds. But just because it’s fast, does that mean it’s effective? Can a drive-by mediation truly serve as a legitimate resolution tool, or is it just a box to tick off before heading to court?

In this article, I’ll unpack the concept of drive-by mediation, exploring its appropriate uses, potential pitfalls, and whether it can stand up as a real solution in Texas family law cases. As a family law mediator and former family court judge, I’ve seen it all—so let’s dive into this somewhat controversial topic.

WHAT IS A DRIVE-BY MEDIATION?
Imagine you’re cruising through a fast-food drive-thru. You know what you want, you order quickly, and in a few minutes, you’re on your way with exactly what you asked for. Drive-by mediation works in much the same way. It’s a brief, often informal, mediation session where the goal isn’t to hash out new agreements but rather to rubber stamp an existing one. Think of it as mediation on fast forward.

Typically, drive-by mediations are used when both parties have already reached an agreement on all major issues. The mediation is merely a formality to make that agreement enforceable and irrevocable. No muss, no fuss—just a quick meeting, a few signatures, and you’re done.

WHEN IS A DRIVE-BY MEDIATION APPROPRIATE?
The simplicity of drive-by mediation is its greatest asset. It is particularly effective when both parties are in complete agreement and merely need to formalize their settlement. The two primary benefits are speed and the certainty provided by the mediated settlement agreement (MSA).

  1. Irrevocability of MSAs: Once an MSA is signed, it is generally irrevocable. This means neither party can back out of the agreement while the final order is being prepared, offering peace of mind during a potentially lengthy process.

  2. Judicial Enforcement: A judge must sign an order based on an MSA, except in very limited circumstances, such as cases involving fraud, duress, or coercion (see Morse v. Morse,1 Spiegel v. KLRU Endowment Fund 2).

In recent years, Texas courts have consistently upheld the irrevocability of MSAs in several key cases. For example, in In re Lee, the Supreme Court of Texas ruled that courts must enforce MSAs that meet the statutory requirements. The court highlighted that the MSA statute was designed to empower parents to decide what is in their child’s best interest without court interference, as long as the agreement complies with statutory standards.3 Even if one party attempts to revoke the agreement, courts are still required to enforce the MSA.

In In re Minix, the 14th Court of Appeals in Houston held that parties could not revoke an MSA despite having expressed on record their desire to do so, which the trial judge initially accepted. After one party obtained new counsel and sought to enforce the original MSA, the court of appeals ruled that the original MSA could not be revoked, even with mutual consent, and therefore enforced it.4

In Milner v. Milner, the Supreme Court of Texas addressed the enforceability of an MSA under Texas Family Code § 6.602. The court affirmed that an MSA that meets statutory requirements is binding and irrevocable, obligating the trial court to render a judgment in accordance with the agreement. In this case, the MSA involved the division of a community estate, including a partnership interest. Although the court of appeals initially set aside the MSA due to a lack of “meeting of the minds” over a material asset, the Supreme Court of Texas ruled that the MSA should not have been set aside. While the court agreed that the property division needed further proceedings, it emphasized that the MSA remained binding, reinforcing that trial courts must enforce MSAs that comply with statutory requirements, regardless of later attempts to withdraw or post-signing disputes.5

In Highsmith v. Highsmith, the Supreme Court of Texas upheld the enforceability of an MSA signed before the divorce case was even filed.6 This case further underscores the strong commitment of Texas courts to enforce MSAs, solidifying their role as a reliable tool for dispute resolution.

STATUTORY REQUIREMENTS FOR AN MSA
For an MSA to be enforceable, it must comply with specific statutory requirements outlined in the Texas Family Code. According to Section 6.602, an MSA is binding if it:

  1. Includes a prominently displayed statement that the agreement is not subject to revocation;

  2. Is signed by each party to the agreement; and

  3. Is signed by the party’s attorney, if any, who is present at the time the agreement is signed.

If these conditions are met, the MSA is binding and enforceable, regardless of any other legal rules, including Rule 11 of the Texas Rules of Civil Procedure.

Similar provisions apply to MSAs in suits affecting the parent-child relationship (SAPCR), as outlined in Texas Family Code Section 153.0071. However, the court may refuse to enter a judgment on an MSA if it finds that one party was a victim of family violence, impairing their ability to make decisions, or if the agreement allows a person with a criminal history or pattern of abuse to have unsupervised access to the child, and the agreement is not in the child’s best interest.

TO HECK WITH MEDIATORS! WHAT ABOUT INFORMAL SETTLEMENT AGREEMENTS OR RULE 11 AGREEMENTS?
While an MSA offers finality and enforceability, other forms of alternative dispute resolution, such as a Rule 11 agreement and an informal settlement agreement (ISA), lack the same level of security.

  1. Rule 11 Agreement: Although valuable, a Rule 11 agreement is not binding until the court renders judgment. This means that either party can revoke the agreement before the court’s judgment, introducing a significant element of risk. Additionally, a Rule 11 agreement concerning child-related matters remains subject to the court’s “best interest of the child” analysis, which could result in the court rejecting the terms of the agreement.

  2. Informal Settlement Agreement (ISA): Similar to a Rule 11 agreement, an ISA requires further judicial approval before it becomes binding. The court must find that the terms of the ISA regarding property division are “just and right,” and if children are involved, that the agreement is in their best interest. If the court finds the terms of the ISA unacceptable, it can request revisions or set the case for a contested hearing, adding uncertainty to the process.

WHEN IS A DRIVE-BY MEDIATION INAPPROPRIATE?
While drive-by mediation is effective in certain scenarios, it is not suitable for every case. Complex issues, deep-seated conflicts, or significant disagreements may require a more thorough mediation process. In such cases, a drive-by mediation might not adequately address the underlying issues or facilitate meaningful dialogue.

Moreover, drive-by mediation may be inappropriate in cases involving allegations of family violence or other significant concerns. In these situations, the mediation process should be designed to ensure that all parties can fully participate and that their concerns are addressed comprehensively.

CONCLUSION
Drive-by mediation is a valuable tool for formalizing agreements when both parties are in complete agreement and need only to make their settlement official. However, it is not a substitute for more thorough mediation when deeper conflicts or complex issues are involved. The key to successful mediation is assessing each case individually and determining whether a drive-by approach will genuinely serve the parties’ best interests or if a more comprehensive process is warranted.

Ultimately, the goal of mediation should be to achieve a fair and equitable resolution that serves the best interests of all parties involved. Drive-by mediation is just one of many tools available to achieve that goal, and it should be used thoughtfully and appropriately.

Notes

  1. Morse v. Morse, 349 S.W.3d 55, 56 (Tex. App. 2010) (“A court is not required to enforce an MSA if it is illegal in nature or procured by fraud, duress, coercion, or other dishonest means.”)

  2. 228 S.W.3d 237 (Tex. App. 2007).

  3. 56 Tex. Sup. Ct. J. 1247 (Tex. 2013).

  4. 543 S.W.3d 446 (Tex. App. 2018).

  5. 55 Tex. Sup. Ct. J. 419 (Tex. 2012).

  6. No. 18-0262.

Headshot claude declouxJOHN R. MILLARD is a former associate judge of the 328th Family District Court in Fort Bend County. He is a partner in Armatys Millard, in Richmond, where he serves as a full-time family law mediator and arbitrator.