Sometimes after agreeing to mediate or arbitrate future controversies at the time of a Texas divorce, one party may not want to follow through on that agreement when a controversy actually arises. In other cases, the parties may disagree on whether the alternative dispute resolution provision applies to a particular claim or controversy. In such circumstances, the party seeking arbitration may move to compel arbitration. That party must show that there is a valid arbitration agreement and that the dispute is within the scope of the agreement.
In a recent case, a father appealed the trial court’s denial of his motion to compel arbitration. According to the appeals court’s opinion, the final divorce decree included an alternative dispute resolution provision. The provision provided the parties shall mediate the controversy in good faith before setting a hearing or initiating discovery in a suit to modify the terms and conditions of conservatorship, possession, or child support, except in case of an emergency. The provision specified it did not apply to enforcement actions. It required a party seeking modification to give the other party written notice of the desire to mediate. If the parties do not agree on a mediator within 10 days or the other party does not agree to or fails to attend mediation, the party seeking modification is relieved of the obligation to mediate. The provision further provides that if a controversy could not be settled by mediation, the parties agreed to submit it to binding arbitration with a specified arbitrator.
In the fall of 2021, the father started trying to negotiate custody matters. In July 2022, the mother’s attorney sent an email to the father’s attorney stating modifications did not need to be arbitrated. The father’s efforts to negotiate or mediate failed, and he sent an email demanding arbitration at the beginning of August.