The Marital Settlement Agreement: Getting it Right & Making it Stick in Mediation Divorce

There are essentially three ways to resolve a given issue in a divorce case:

the judge decides
the spouses "settle" at the courthouse, usually under considerable pressure
the spouses reach agreement in mediation

In a letter distributed to all divorce litigants, the Supervising Judge of the Los Angeles Superior Court Family Law Departments [See Letter from Family Court at ] points out that mediation is cheaper, faster, less stressful, and less harmful to children and relationships than going to court.

The purpose of this article is to address still another advantage of mediation, that it leads to a formalized Marital Settlement Agreement ["MSA"] which is much more likely to "stick", i.e., be a real final resolution.

RESOLUTION AT THE COURTHOUSE: "SETTLEMENT" AND/OR JUDICIAL DECISIONS

During the period [usually one to two years or more] from the filing of the Petition until Trial, agreements and/or decisions are made at the courthouse in a piecemeal fashion.

Typically, the case will come up for one or more hearings which culminate in pendente lite [during the case] orders. While these orders are not final, they are entered by the same judge who will make the final orders at trial [there are no juries in Family Court].

In any divorce case where there are minor children, court rules require the spouses to attend a brief mediation in "Conciliation Court", aimed at producing a tentative parenting plan.

If the spouses do not agree, the judge will order a plan.

Just before trial, the spouses and their lawyers are required to sit down with a volunteer attorney who attempts to get the parties to reach agreement on some or all issues. This attorney, who volunteers for a day or half-day, is assigned a number of cases, and therefore has little time to spend on any one case. The volunteer attorney mediator may meet ["caucus"] first with the husband and his attorney, then separately with the wife and her attorney. The strengths and weaknesses of the case are evaluated, and the husband is urged to compromise his position on each issue to avoid a worse result if the case should go to trial. The wife is then given a similar message. The spouses make compromises to arrive at middle-ground agreements. A court "Settlement Agreement" form is then filled out, signed by both spouses and their attorneys, and by the judge, making each agreement an order of the court. Any issue not settled will go to trial.

The trouble with these agreements at the courthouse is that they are merely compromises of opposing positions, not the result of deliberate, thoughtful negotiation to find common interests and creative solutions. Acquiescing under pressure, the spouses have not had the time or opportunity to think about what is being "agreed" to, much less to make trial runs to see how the "settlement" will work.

RESOLUTION AT THE MEDIATOR'S OFFICE

In mediation, the process is different. The spouses meet with the mediator in approximately three sessions, over a period of about a month. Without pressure, the spouses look at each issue to try to determine their own underlying interests, and to identify common ground shared with the other spouse. For example, a parenting plan may be tentatively agreed to and tried, then changed, and then tried and changed again, without making any final commitment. While the mediation is ongoing, all agreements are tentative, and there is full opportunity for experimentation.

When final agreement is reached on all issues, the MSA is prepared, reviewed and perhaps amended, and finally, signed by both spouses. While perhaps not getting everything she/he would have liked, or initially had in mind, each spouse has determined that every provision is at least something she/he can live with.

The mediator, if he/she is an attorney, writes an MSA that conforms to the requirements of law to form an enforceable contract. In California Family law, the expressed intention of the spouses in the MSA can be important, or even determinative, of whether any post judgment motion to amend a portion of the judgment will be considered by the court. Thus, by their wording of the MSA, the spouses can get finality, or flexibility to take account of unforeseeable circumstances, as they desire.

When they sign the MSA, the spouses can take satisfaction in reaching agreements which make sense for both of them, for their children, for the extended family, and for preservation of community assets. By choosing to negotiate with each other under the mediator's guidance, instead of hiring a lawyer to make "winning" arguments to a judge, they have achieved an informed agreement that is carefully worded and workable, and therefore unlikely to result in post-judgment disagreement and litigation, i.e., an agreement that "sticks."