Mediation can be a cost-efficient way to bring divorcing parties together and get them to compromise in order to avoid the need to go to court. But what happens when the parties reach an agreement? Since they are not in court, is there a way to enforce the agreement they reached? How can you trust the other party will adhere to their end of the bargain?
First, if mediation ends with an agreement that never gets put into writing, it can be difficult to enforce it. Fortunately, this is a rarity, and it almost never happens in a divorce case. Generally speaking, the agreement must be memorialized in writing to become legally binding.
Talk to Your Lawyer
A mediator is a neutral party to the process and, therefore, cannot provide legal advice to either party in mediation. If your lawyer is present during the mediation sessions, they can provide advice regarding the agreement in real time. However, many spouses choose to attend mediation without their lawyers, which will require additional steps before they sign an agreement.
When you reach an agreement, it may seem like it is fair and favorable at the time, though you may be overlooking certain issues that can result in problems in the future or aspects of the agreement that may go against your rights. While the point of mediation is to compromise, you still want to make sure your rights and interests are fully protected. For this reason, you should schedule an appointment to talk to your lawyer right away to discuss the terms of the mediation agreement.
If your lawyer finds problems with your agreement, you may need to return for another mediation session. However, if your lawyer approves of the agreement, they can draft a contract that covers all the terms you agreed to.
A contract is a legal document signed by both parties that sets out the rights and responsibilities of each party in a transaction, such as a divorce. Each party has the right to enforce the terms of the contract and provides legal remedies should one party breach the contract. In order for a contract to be legally enforceable, contract law requires that it includes specific elements, including:
- An offer that includes specific details of the agreement
- Acceptance or agreement to the terms by the other party
- Consideration, which is something of value being exchanged
- Both parties have the mental capacity to understand and agree to the terms
- Both parties enter into the agreement with the intent to carry out their part
- The terms of the contract do not go against public policy and are lawful
Your lawyer should know how to draft an enforceable contract that includes all the terms you agreed to in mediation. Divorce agreements stemming from mediation may address one or more of the following:
- How you will divide community property, assets, and debts
- Child custody and visitation arrangements
- Payment of child support
- Payment of spousal support
Once you sign a contract, you and your spouse are legally bound to stick to the agreement. If you agreed to hand over certain property or assets, you must do so. If your spouse agreed to pay you a lump sum in lieu of monthly alimony, they must pay you. If someone fails to keep their promise, the other party can enforce the contract in court.
In divorce cases, it is also common for a mediation agreement to become part of the court’s final judgment. The court will want to ensure that issues were resolved fairly, so it can review the agreement you signed. The court will specifically be making sure that all child-related agreements are in the best interests of the child as required by California law. If the court approves of the resolution, the judge will include the terms of your agreement in your finalized divorce judgment.
When this happens, your mediation has all the weight of a court order. This means there can be more serious consequences for failing to adhere to the agreement. For example, if your ex-spouse refuses to comply with the custody schedule you agreed to in mediation, you can ask the court to enforce its order. If your ex-spouse continues to ignore the order, the court can hold them in contempt, which can have serious civil – or even criminal – penalties.
While mediation is a less formal and less costly process than litigation for divorcing spouses, you can still ensure that your mediation agreement is just as enforceable as any other type of court order.