Can You Change A Mediation Agreement After The Fact?
Whether you can change an agreement after the mediation depends on whether you signed the agreement in mediation. When you mediate an agreement, once you’ve reached that agreement, you need to put it in writing and have both parties sign it.
It is imperative to have an attorney review your mediated agreement before signing. Depending on the case and where the parties are at in negotiations, as mediators, we have the parties sign an agreement in the mediation session or send them a draft of the written agreement.
Typically, we send each party a draft of the written agreement to allow them to show it to their attorney. Their attorney will look out for their client’s specific interests and will not be a neutral third party like in mediation.
So, if you haven’t signed a mediation agreement, then technically, it can be changed. You can change your mind. You can decide that you don’t agree with this, after all. As litigating attorneys, we’ve had parties come to us that reached an agreement in mediation. We reviewed their agreement and discussed it with them, and a week later, they contact us saying they had time to think about it and changed their mind.
If you haven’t signed an agreement, it will not be binding and can be modified. One caveat to that is if you’re doing court-ordered mediation and you’ve reached an agreement. That court-ordered mediator is to report to the court that you’ve reached an agreement, then that agreement is binding.
Therefore, it’s crucial to see your agreement in writing and fully agree to it before you sign. Once it is in writing and is signed, it’s extremely difficult to change.
Why Should I Mediate My Case Instead Of Litigating It?
There are a couple of reasons why you should mediate your case instead of pursuing litigation. The most common reasons are the following:
- You’ll save a lot of money with mediation versus litigation because you’ll not have to pay an attorney to litigate your case.
- You’ll save a lot of time because mediation takes far less time than litigation.
However, the most important reason to mediate your case instead of litigating it is that it is far better for the parties and for their children to make their own decisions together about what to do when the parents are separating or when having custody issues rather than leave it up to the judge.
Divorce and custody cases can get so expensive when you’re litigating them because it puts all your issues in a fighting posture. That fighting stance gives you the idea that you must win, that you must convince the court that you’re right and that you have to convince the court that the other side is wrong.
In mediation, you don’t have to prove that anyone or anything is right or wrong. In mediation, the mediator helps you think about what you genuinely want. You’re not thinking about your legal position when you’re in mediation. You’re not thinking about what you’re asking the court to do, what you need to prove, or what evidence you would need.
Mediation is all about the mediator understanding what it is that you truly need and what is it that you want. You may not ask for primary custody of your children because you want to share custody. However, you may be thinking that you want to make sure that your child continues to see you as an equal parent. Or you want to ensure that you have enough time to be involved in the day-to-day activities, including school and extracurricular activities. What you genuinely want isn’t necessarily a legal position; you just want to be an active part of the children’s lives.
When parties can think about what it is that they want and what’s at the root of their issues in mediation and see what’s at the root of the other party’s issues and what they want, then a mediator can help them come together and reach a solution that’s going to work for everyone.
As family lawyers and court-appointed mediators, we believe mediation is a much better vehicle for resolving issues than it is to put your case in the hands of a judge.
It’s very important for people to understand in custody cases that when you are litigating those issues and asking a judge to make the decision, you’re not trying to convince the judge that your position is correct or that the reason you think something is best for your child is correct; You are handing that decision of what’s in your child’s best interests to the judge.
In litigation, the judge is deciding what’s in your child’s best interests, and they’re doing so using a list of factors that have been developed in the law. This list of factors hasn’t been codified because they’re not in the statutes.
However, the factors judges use to make decisions in family law cases are in the case law, and they’ve been developed over the years by attorneys and judges. Those factors may not matter to you, but they matter to the judge.
So, it’s crucial for both parties to understand that when you’re litigating, it’s not about proving you’re right. Litigating your case involves having a third person who doesn’t know you or your children and giving them the authority to make decisions about your lives. Judges must work within the factors in the case law – not necessarily the factors that are important to you.
For divorce cases being litigated, issues such as dividing property, like the marital home, or whether there should be alimony, the judge will decide by looking at a list of factors, just like how they do in custody cases. So, you may think that because your spouse committed adultery, they shouldn’t get anything in the divorce.
You may be terribly upset and angry and think they shouldn’t get part of the house, part of a retirement account, or anything at all. A judge doesn’t necessarily think that way. A judge looks at a whole bunch of other factors besides the commission of adultery.
However, if you can bring your divorce case into mediation, you can have an opportunity to unravel a little bit and process what your motivations are and what it is you genuinely want. The other party will need to consider the same questions so both of you can come to an agreement. What matters to each of you plays a huge part in creating an agreement instead of what the law says is to matter to a judge making that decision. We are big, big fans of mediation instead of litigation.
If you give mediation a chance and open your mind just a little bit to realize the root of the other person’s issues and share what your issues are, it’s a much better way to begin moving on from the relationship. Mediation provides a much better way to turn one household into two, deal with parents living separately, and do what’s truly going to be best for your family moving forward.