Can a Judge Override a Mediation Agreement?

A Primer on Mediation Agreements

Much like any other agreement or contract, a mediation agreement is a document that resolves a dispute between two or more parties. Unlike most contracts and agreements, mediation agreements are unique in that they do not need to be prepared by an attorney or drafted in a specific manner in most situations. Essentially, the agreement constitutes the terms agreed upon by the parties to resolve a conflict so long as it sufficiently describes the issues, including the consideration for each party. Any legal language and formalities within the document are optional, but a notary seal is not required. All that is necessary is for the parties agreeing to the solution to sign the contract.
Typically , a mediation agreement will consist of three parts: By their very nature, mediation agreements are informal in nature. The parties have free range to come to a resolution in almost any manner they choose; however, once it is signed it is binding and enforceable in a Court of law, meaning that whoever makes an omission or variation of the outlined terms may be held in contempt of court for non-compliance with the agreement.
Mediations can be especially sensitive issues since they involve painful arguments and disputes. Because of that, there is no rigid format for preparing mediation agreements. It can be as simple as a notarized signature or a professionally typed contract.

The Judge’s Role in Mediation

Judges and Family Court mediators are independently trained professionals who facilitate and assist parties in drafting clear and concise binding, enforceable agreements. But to what extent does that judge or Family Court mediator go to enforce the agreement as against the lived reality of a parenting plan that is no longer in the child’s best interests?
The starting point for the answer to this question is, of course, the law. The law includes any statute on point, including rules about the treatment of children that are contained in the Children’s Law Reform Act, the Divorce Act and the Ontario Children’s Lawyer Act, as well as common law (also known as case law) which considers the application of the statutes to the facts of a particular case.
Another important source of law about children is the convention known as the United Nations Convention on the Rights of the Child. Despite the fact that Canada is not always in compliance with the obligations set out in that convention, it has been signed by the federal government and promulgated as Canadian law by regulation.
It is important to understand the role of judges in mediating or settling family disputes. Judges may consider, for example, the UN Convention on the Rights of the Child and the common law when reviewing a family law mediation agreement. Parties must remember that the family law judges have a duty to "determine the best interests and welfare of the children in that family.
That best interests consideration of the children is paramount to all of the other interests of the parties. That overriding obligation applies to both judges and mediators. While most cases are resolved by way of agreement, and even when that agreement is reviewed by the court, the court has the final say on whether that agreement holds up to the strict test of being in the best interests of the child.
Parties, therefore, must be realistic when (a) entering settlement discussions and (b) presenting their proposed settlement to the judge, and sufficiently disciplined to recognize that the Family Law Judge holds the ultimate authority to permit or disallow.
This is especially true where the parties have had the benefit of legal representation. Parties need to know that the Family Law Judge has the authority and obligation to assess and determine a child’s best interests.
Likewise, where the parties have no representation (i.e., are unrepresented), they must be aware that the Family Law Judge has more than enough background experience to be able to view the agreement skeptically where the child’s best interests appear to be jeopardized.

Conditions Under Which a Judge May Override

A judge can overrule an agreement to mediate if the timing of the mediation is such that it would be considered unreasonable as a matter of law to require the parties to engage in mediation based on the practicalities of the case as they existed at the time of attempting to mediate. It would not be appropriate to require a party to attempt to mediate as a condition of pursuing their rights in the Court system. A party cannot be forced to engage in mediation on penalty of dismissal of their cause of action without a proper examination of the underlying circumstances.
If a judge finds that the alleged mediation agreement was not supported by consideration, which is a requirement in every contract, the judge can also rule that a mediation agreement was never fully formed and thus not binding on the litigants. There are other more substantive reasons that allow a judge to overrule an alleged mediation agreement, but these reasons are rare and fact specific.
If a court cannot find an agreement to suppress access to the administration of justice, it may well find a mediation agreement to be binding on the court and the litigants.

Relevant Case Law and Precedents

Court cases provide us with precedents to help guide us in the future. There are very few cases however involving judges overruling mediation agreements. Over the years there have been many decisions made by the courts on both sides of the equation, giving parties a sense of confidence and clear advice on when the courts will uphold or set aside a mediation agreement.
In Skorek v. Skorek, 442 N.E.2d 238 – N.Y: Supreme Court, Appellate Division, 1983, the court determined that the parties breached their mediation agreement by moving away from the original intent and purpose of the agreement which was to avoid divorce. Post divorce, the court declined to rule that the parties breached it by their subsequent actions in altering the terms and conditions of their prior agreement. The court concluded that spouse’s unilateral decision to move with the child to another state violated the separation agreement, but he was not in default of payment as funds were deposited into a guardian’s account pending the resolution of the dispute.
In Koss v. Koss, 368 N.P.2d 1354 – Colo., 1978, parties mediating their divorce attempt to modify the separation agreement regarding child support." A reconciliation was attempted by the parties and they lived together in temporary harmony, but in doing so, they did not modify the child support provisions." They later considered reconciling but determined "the differences which were to be worked out on a trial basis would effect the `support’ of their children."
In Klotz v. Klotz, 485 N.E.2d 1109 – Ohio App. 1985, divorced parties enter into a separation agreement but in contemplation of further hearings to modify the previous orders of the magistrate, both parents agreed to joint custody of their three children, with each assuming financial responsibility for two of the children . Parties subsequently attempted to clarify the settlement agreement in order to meet the needs of joint custody, and although each parent is financially responsible for two of the three children, neither parent will be providing coverage to all three children at all times.
In Suky v. Suky, 541 So. 2d 149 – Ala., 1989, divorced parties entered into a separation agreement providing for the sale of the marital residence. Trial court later approved a Consent Judgment modifying that decree to provide that former husband be solely responsible for the expenses of the home until the former wife was able to refinance the loan in her name. When the former husband learned his ex-wife could not qualify for a new loan, the former husband began calling to have the house put up for sale. When the home did not sell and it remained on the market, the trial court found him to be in contempt for failing to keep the former wife and kids informed of the sale.
In Mascaro v. Mascaro, 614 A.2d 661 – Pa., 1992, divorced parties entered into a Separation Agreement which provided for future modification. Mother’s frequent traveling out of state and father’s full-time work schedule caused several modifications of the original agreement. Based on extensive testimony, the court determined the joint legal and physical custody arrangement was not in the child’s best interest and modified the agreement so that mother had primary physical custody.
One of the most recent cases regarding overruling mediation agreements is McMahon v. McMahon, 2008 – A. 123 – N.J. Super. A., 2008. The trial court granted plaintiff wife’s motion for enforcement of the final judgment of divorce, which incorporated a comprehensive property settlement agreement providing for equitable distribution of marital assets. Plaintiff then filed a motion for counsel fees. The court granted the application, but later denied the request for fees and granted defendant husband’s cross-motion for counsel fees and ordered plaintiff to exclusively pay certain medical bills incurred by the children of the marriage.

Consequences for the Parties Involved

The impact of a judge overruling a mediation agreement can be significant for the parties. Legally, it raises questions about the enforceability of the agreement in other jurisdictions, what value the agreement has versus other legal documents, and whether the judge’s ruling on the agreement is appealable. If the agreement was found to be enforceable elsewhere, the judge in the new jurisdiction would have to give full faith and credit to that agreement in his or her enforceability. But, if the finding about the mediation agreement is that it is not enforceable at all, then the parties will essentially be returning to the pre-mediation negotiations (and potential contempt of court issues) stage of the proceeding.
Emotionally, a judge’s ruling might make one party feel vindicated, but more likely leave the parties angry that a judge has added a layer of frustration to the process – which sometimes happens. But, there is still a real hit to the confidence level that parties feel heading back towards judgment, especially if there is a finality to the process of mediation that is now lost. Also, many times mediation leaves the parties in a better emotional place to negotiate a settlement – it is clear that the parties were both willing to give up certain issues in order to reach an understanding. But now, if there is a perceived winner and loser in this situation, that emotional state might be ruined.

Guardrails Against Overriding

There are, however, some safeguards the parties can put in place to protect their mediation agreements from being overruled by a judge:

• It is important when drafting the final settlement agreement to show the Judge at least a "change in disposition" in the assets and liabilities. I have had judges reverse a mediation agreement because the real estate values in the agreement were too dramatically different than what the Judge had considered "fair" in the past. I battle with the other attorney on many of the terms of the agreement, but be sure to change something on the agreement so that it does not appear to the Judge that the agreement is simply a "handshake exchange".
• Put the mediation agreement in writing and ask that all the parties sign it. Do not try to attribute the mediation agreement to a particular e-mail sent to the other side or a phone conversation that occurred. The mediation agreement needs to have the signatures of both parties. Judges often do not accept faxed signatures or even signatures from an un-signing authority. (For example a wife who signs for a husband who is not present). If a Judge cannot find who signed the mediation agreement , he may throw it out.
• Both parties should be present when the final mediation agreement is signed. I have had many mediations where one party leaves prior to the signing of the agreement and I am only able to get one signature on the agreement. This is not a binding mediation agreement if the second party refuses to sign it.
• If the mediation agreement is verbal, the mediator can record it if they have the permission of both parties. I often tape record the final settlement agreement at the mediation table and at the end of the mediation, both parties will listen to the recording. At that point both parties sign the final settlement agreement and I send a copy of the tape and written agreement to both parties. I then use the tape as an attachment to the final written settlement agreement and ask for approval by the Judge. Not only do I have two signatures on the contract but I also have a tape of my clients telling me exactly what they want. I can play the tape if the other party comes to court with a different story. Most of the time, once they hear their own voice, things do not change.