Legally Binding Agreements Are Possible with Divorce Mediation
Frequently someone will tell me a particular family law case is not appropriate for mediation because they don’t believe they will get a legally binding agreement out of the process. This frustrates me, because it is so far from the truth. Let’s explore the key question: is divorce mediation binding? The short answer: yes. There are easy ways to make sure your divorce mediation is binding. Let’s talk about them in more detail.
Handshake agreements are NOT binding
Often, parties to a mediation will make small agreements, or “handshake” agreements. These type of agreements will not be binding on anyone if they end up being fought over in litigation.
There are times when people mutually agree on a handshake to seal a deal to make it enforceable. Mediators sometimes employ simple handshake agreements in divorce mediation. Perhaps two parents want to agree in good faith they will pay for a child’s college tuition. But they don’t want to put themselves in a position of violating a court order if for some reason anything changes due to loss of employment or an expensive medical emergency, which would make paying for college impossible. These folks will agree in principle — or morally — they will work cooperatively to pay for college. However, such moral or handshake agreements are NOT binding.
To make divorce mediation legally binding, get it in writing
When you are ready to sign off on an enforceable agreement, get it in writing. Most attorney mediators will create the legal document for you to sign. If you are working with a non-attorney mediator, he or she will probably prepare a memorandum of understanding. You can then take this paperwork to an attorney to draft a binding document. Once all parties sign, the agreement is binding like any other contract.
Follow the Code of Civl Procedure to ensure agreement enforcement
The California Code of Civil Procedure (CCP) section 664.6 provides a way for agreements reached pending settlement to be enforced by the court. Section 664.6 provides:
“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”
Sometimes when parties reach an agreement during their divorce mediation, I will write up the notes of the settlement on a legal pad and note it is a binding agreement pursuant to CCP 664.6. When the parties sign, the agreement is binding and the Court will enforce it.
Have your attorney review your mediated agreement
Before anyone signs on the dotted line, I always advise parties to have a lawyer review their agreement. As the mediator, I have to be neutral like Switzerland. This means I can’t advise you about your legal rights or your best interests without violating legal ethics. Parties should have a lawyer who can review documents and provide the necessary legal advice before signing. This reduces your risk, and guarantees everyone is making informed decisions.
Only a judge can make your agreement legally enforceable
It is your option to send your mediated agreement to a judge for signature. This is particularly common when you use mediation to create a final marital settlement agreement for your divorce. The mediator sends the signed agreement to the Court for the judge’s signature. Once the judge signs, the agreement becomes an order of the court. This means it is enforceable just like any other order of the court. This is the only way you can turn to the legal system in the future if someone violates any portion of the agreement.