What is a Mediation Agreement
Mediation agreements are the written records of the mediation process. They can take many forms, as they depend on the particular dispute, the parties, and the mediator. There is no prescribed format, but mediation agreements typically contain key information about the dispute, the parties to it, the agreement process, and the resulting resolution. Because there is no prescribed format, parties have vast leeway in how the terms are structured.
The purpose of a mediation agreement is to memorialize the terms of an agreement among the parties to a conflict achieved during the negotiation of the very dispute for which the mediation was convened . Mediation is a process that is perceived as less onerous than litigating a conflict in court before a judge or jury. Parties involved in mediation often credit the process with being less expensive than and more expeditious than a lawsuit, as well as providing each party with some control over the process and the result. Mediation has become a more popular mechanism for resolving conflict than litigation, and continues to gain traction as a primary tool for dispute resolution.
Modification of Mediation Agreements
It can be possible to modify agreements made after mediation. However, the circumstances under which this is possible will differ from case to case. Generally, agreement making at mediation is voluntary and for that reason, mediation agreements are legally binding. This means that the terms agreed to by all parties at mediation can be enforceable in Court. Any changes made post-mediation will be a result of one party’s request to change a term or agreement made.
In some cases, particularly where there is a disagreement over one party’s understanding of what was agreed to, it may be possible to reconvene the parties to a mediation, with the inclusion of an independent mediator, to try and resolve a dispute. Alternatively, if the parties only wish to vary specific terms of their agreements, then this can be done with the permission of the mediator, by bringing the terms of the agreement in writing and then in the presence of the mediator for them to witness and acknowledge their acceptance in writing. Equally, the parties may be comfortable with recording the changes in writing themselves. In both cases however, it is important that the changes made are witnessed by both parties.
In other circumstances, parties may wish to change the terms of the agreement made into a Court Order. Or, parties may only wish to change some aspect of the mediation agreement. In this instance however, it has to be clear to the other party that a variation to a mediation agreement may not affect the validity of the rest of the agreement. In order for that to be the case, the variation must be expressly agreed to by all parties. If there is no acceptance of the variation by either party, the substance of the mediation agreement will remain unchanged. Parties will generally be asked to identify that the variation does not have the effect of affecting the validity of the rest of the agreement.
If all parties are in agreement of the variation being sought, the new terms can be written down and signed by each of the appropriate parties.
Changing an Agreement through Legal Mechanisms
Generally, in order to modify an agreement after a mediation, the parties must consent to the modification. Provided that both parties are in agreement on any modifications, they can proceed with amending the agreement.
If such modifications are made, it may be necessary for the parties to seek a court’s approval. This is especially true if the agreement involves support, custody, or parenting time. Where a child is involved, a court must determine that the modification is in the best interests of the child or enter an order approving a stipulation only on a finding that the agreement "is fair and equitable or not unconscionable."
In those cases, the court may order an evidentiary hearing in order to determine, by expert and other evidence, whether the proposed modification is in the child’s best interests. You can always put a provision in the agreement that it cannot be modified without the parties’ consent. As an extra precaution, it is advisable to include a provision which states that if a modification is necessary, it is acceptable to file a consent order memorializing the changes in order to avoid a full hearing where a court would otherwise address the modification.
Reasons for Altering or Changing Agreements
However, there are some common issues that may lead a person to seek an adjustment to a mediation agreement.
Changes in Circumstances
A divorce or custody agreement often must accommodate significantly different circumstances than when the agreement was made. For instance, when a person moves to a different state, remarries, experiences a job change or undergoes a life-altering event, the provisions of an agreement may not fit the new situation. In some cases, the change may be a mutual one that impacts both parties.
Overlooked Terms
In some cases, people may agree to the terms of a mediation settlement without having a great deal of time in which to review it before signing. They may have overlooked important terms or the subtle implications of said terms that they wish to address when they have a chance to fully consider their options.
Unintended Consequences
A mediation agreement may contain provisions that have unintended consequences. That is, while the parties may have had good intentions of accomplishing a certain goal, the provisions of the agreement may not have carried out that goal. In these cases, the parties may collaboratively draft an amendment to the agreement to address the issue. Getting the agreement amended may avoid the need to go back to mediation or trial.
Involvement of Legal Counsel in Changing Agreements
In most cases, it is not a requirement that a mediation agreement be registered with the counsel of either or all parties to the mediation. However, it is strongly advised that before continuing with the changed agreements, that the parties seek the advice of counsel. If they have counsel, the parties should also seek the advice of their respective counsel before continuing with the changed agreement.
Clients will often say that their lawyer told them they could renegotiate a settlement with their spouse after the fact. There are many reasons why this is not necessarily true. As a general rule, any change to a mediation agreement must be formalized for the change to be legally binding on the parties. Commitment devices such as a separation agreement or other legally binding written document are very important in this process. As mentioned previously , most family agreements contain some kind of review provision that is triggered once parties agree on a change to the original mediation agreement. The legislation in place for family law mediation in Alberta, the Family Statutes Amendment Act, R.S.A. 2005, c. 2 ("FSAA"), states clearly that mediation agreements are binding on the parties. The FSAA was created based on the belief that parties who entered into the mediation process were able to do so with the clear understanding that any agreement entered into would be binding on all parties. The FSAA outlines what is required for a valid mediation agreement to be created and entered into.
As you can see from the explanations above, changes to a mediation agreement must be completed under very specific guidelines. It is strongly suggested that in the event there are changes to a mediation agreement, that the client seek the advice and assistance of counsel to ensure that the changes are done correctly and that the changes are binding on both parties.
Pitfalls to Consider and Prevention Measures
The most obvious challenge is finding parties that are willing to revisit the agreement after the mediation process has concluded. The success of a mediation often relies on a sense of finality, and when one party does not view the resulting agreement as the end of the matter, the other party may feel that their agreement was disingenuous. This is particularly true when the agreement is financially driven. Nobody likes to feel as though they have been duped or misled into a more generous settlement in order to obtain that ever illusive "finality."
One way to circumvent this issue is to obtain an immediate order of the modified agreement on the record. Depending upon your State, such an order can be sought immediately and placed in the record if all parties are in agreement. This will prevent future litigation where a party can attempt to assert that the agreement was the product of a coercive mediation process. Moreover, if the mediated agreement was equitable distribution based, you can ensure that a marital asset does not become the subject of equitable distribution, when the origin of the property was a post-agreement modification.
In many cases, the draft agreement must be finalized after the correct attorney review and there is almost always some back and forth before the midland and agreement becomes a final document. However, when drafting modifications, it is advisable to have a similar procedure as the original agreement. While it may feel like a waste of time, it can not only cover you from ethics violations and failure to disclose certain assets, but it can also avoid issues that arise with pro se parties. Ill will and the potential for litigation can be avoided, thus promoting the ultimate goal of settlement.
Conclusion: Flexibility after Mediation
When mediation closes, the parties often come to an agreement but in the days that follow, may recognize that a specific term in the agreement is not workable. Or perhaps a critical assumption on which the agreement is based is found to be flawed. The issue then arises whether the parties have flexibility to modify the agreement, and if so, what are the limits on that flexibility?
For the most part, agreements made at mediation can be modified, particularly if the modification is in line with the broader terms that were agreed upon at the mediation. As a general rule, the executing parties, as master of their own agreement, can modify their existing agreement if all parties consent to the modification. In fact, the mediation may have included language that clearly states the parties retain the right to change the agreement if they so determine. If the parties who have entered into the mediation agreement have not included such a provision, modification may still be possible.
Family law mediations often result in agreements that are drafted as separation agreements or partial agreements pending further detail/clarification (i.e. tax issues, pension evaluation, etc). Since these agreements will ultimately be incorporated into court orders, they must comport with the legal requirements of being fair to both parties and compliant with relevant case law. Agreements that have been subsequently shown to have been made under a misapprehension or that terms of the agreement have become unworkable over time, can be rescinded by the court upon application by one of the parties or by consent of the parties.
Airline settlement agreements can be complex and of a significant length so parties often may recall general terms but not specific obligations. Further , terms may be interpreted differently by the parties, leading to a stalemate on an issue. In such cases, the parties should try to have an open conversation and attempt to clarify what was intended during the mediation and whether the terms can be changed to meet their circumstances. Where the parties are unable to reach agreement on a specific issue and have not expressly reserved the right to modify the agreement, litigation may be required to seek to have the Court incorporate the terms upon which the parties did agree and/or allow for the modification of terms upon which they disagree.
Successive disputes or complications can arise following the finalization of agreements of other forms, whether they be mediated (or not) including Employment, Commercial, Insurance and Personal Injury agreements. As with the examples above, where an agreement has not expressly limited the right to change the terms, the parties should attempt to resolve the issues but where this proves futile, it can become necessary to return to court. The degree of flexibility is always subject to the facts and nature of the agreement. This is further complicated by the fact some form of agreements are more amenable to change than others. A matter which may be litigated may have a shorter limitation period than an agreement which may be only modified by the parties. Thus, seeking the assistance of counsel is advisable.
Flexibility can be an important aspect to making an agreement work for the parties beyond the initial mediation meeting. It also can be a way to salvage an agreement that may inwardly collapse if the parties are unable to work through an issue. Understanding the nuances of post-agreement flexibility can help in that process.