05.01.2023 News Doerner

The Benefits of Mediation and Understanding the Process

By Christian D. Barnard

Judges presiding over domestic litigation (divorce, paternity, custody and support modifications, etc.) regularly order parties to attend mediation. In most counties in Oklahoma, mediation is a hard and fast requirement. Attendance is mandated before a pre-trial conference or trial can be set. The Court’s rationale in ordering the parties to mediation is sound: Every effort should be made to encourage the parties to maintain control over their case by reaching an amicable settlement before the Court intercedes and imposes an outcome that neither party is likely to love.

More than 80 percent of domestic cases successfully settle during mediation before trial. So, if mediation is mandatory and settlement is likely, parties should be able to rely on the mediation process to result in full, final and enforceable agreements, right? Unfortunately, the answer is not always a resounding “yes.” 

As any litigant in a family law case can attest, domestic litigation is a unique animal. Rules of pleading, procedure, and evidence are often bent or broken in the pursuit of equity. The mediation process and its resulting written settlement agreements are no exception. Unfortunately, sometimes a deal is not a deal. There are, however, steps a litigant and their attorney can take to make a settlement agreement stick. With the right approach, parties can ensure that their agreements are as strong as possible.

First, choose the right mediator. This is an important but often overlooked step in the settlement process. In most instances, it’s best for the parties involved to rely on the advice of their lawyer – this does not mean a party should not offer input on the issue. Specifically, a party will know their opposing party better than their lawyer ever will. Is your soon-to-be ex a bully? Do they make a habit of working to buffalo others into submission by sheer tyranny of will? Or are they meek or timid, eager to submit to others simply to avoid conflict? In either case, choosing the right mediator to overcome your opposing party’s strengths or weaknesses can go a long way.

Second, work with your attorney to prepare for mediation. Mediations, like trials and other court appearances, are won with preparation. Your mediator will request documents and information be provided before mediation; typically, financial statements and other income information, identification and accounting of the make-up of the marital estate, and each party’s settlement positions and desired outcomes. If you work closing with your attorney to prepare for mediation, you will be in the best position possible to achieve a positive result.

Third, enter mediation with an open mind, a willingness to compromise and work to negotiate in good faith. Remember, you are trying to get your case settled. Put out of your mind the concept of hitting a home run and winning every issue. Often, a good settlement agreement leaves both parties feeling less than satisfied. You are trying to reach an outcome that is workable, as opposed to perfect. An adage among lawyers is that “if both parties leave mediation angry, you probably have a fair settlement.” There is wisdom and truth to this, and it will serve litigants well to keep this in mind while mediating their case.

Finally, if you do reach an agreement at mediation, ensure that the base terms of that agreement are memorialized in writing. A signed mediation agreement is not the settlement finale in domestic litigation, but it is necessary to ensure both parties understand exactly what they have agreed to.

Remember, written settlement agreements in Oklahoma require the Court to make an independent assessment that custody terms are in the children’s best interests and that property and debt division is fair and equitable. These requirements have resulted in a line of appellate court opinions determining that a signed mediation agreement in most cases is not an enforceable contract. This means that if there is a disagreement between the parties after mediation as to the terms of the agreement or if a party simply decides they no longer like the deal, they can object and make efforts to force the issue back to the Judge – effectively nullifying the settlement agreement. The law on this issue continues to evolve, but there are ways parties can protect themselves by being proactive at mediation.

The simplest approach is to add a second step to the written settlement agreement process by insisting that the parties and their lawyers sign and submit an order to the Court immediately following mediation wherein the Judge approves and adopts the settlement agreement. In this scenario, the parties would reach settlement terms, reduce those terms to a written settlement agreement, and sign that agreement. Then, the lawyers and the mediator would draft an agreed order approving and adopting the settlement agreement with all the legal details included to eliminate either party from abandoning the agreement later. Finally, the agreed order is submitted to the Judge who reviews the terms, notes the parties’ agreements and their collective request that the Court approve, adopt those agreements, and then signs and enters the agreed order.

With preparation, the right attitude and an awareness of the law applicable to settlement agreements in domestic litigation, you can ensure your mediation is successful and enforceable. Doerner, Saunders, Daniel and Anderson has attorneys who are experienced with the mediation process and can provide helpful legal advice specific to your circumstances. To meet with one of our attorneys, contact us at (918) 582-1211 in Tulsa or (405) 319-3500 in Oklahoma City.

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