The Post-Divorce-Parenting Glossary

• What is a mediation clause in divorce?
• How does a mediation clause compare to an arbitration clause in divorce?
• Why would a mediation clause exist in a divorce decree?
• What are the benefits of a mediation clause in a divorce decree?
• What are the disadvantages to a mediation clause in a divorce decree?
• What types of disputes will a mediation clause cover in a divorce decree?
• What other alternative dispute resolution measures can be used in conjunction with a mediation clause?
• What does a sample mediation clause look like?

What is a mediation clause in divorce?

A mediation clause is a section of a divorce decree that instructs parties to mediate a dispute before engaging in divorce litigation.  There are basically three common methods for resolving disputes during and after a divorce.  These include litigation, arbitration, and mediation. Divorce arbitration and divorce mediation are considered alternative dispute resolution mechanisms.  The intent of both mediation and arbitration is to avoid litigation.

How does a mediation clause compare to an arbitration clause in divorce?

Mediation and arbitration have some similarities; however, there are very important differences between these two alternative dispute resolution methods.  Arbitration is binding.  Mediation is not.  This means that in mediation, if one party is not happy with the outcome of the mediation, they can ignore it and proceed with litigation or whatever other dispute guidance is contained in the divorce decree.  Think of mediation as "assisted negotiation".  The mediator is simply there to help parties attempt to come to an agreement.  A mediator does not have the authority to make a binding decision that either party is obligated to follow.

Conversely, arbitration leads to a binding agreement.  Whatever decision the arbitrator arrives at becomes an decision that cannot be appealed, except under a few limited circumstances.

Thus, a mediation clause may force parties to attempt to mediate before continuing with other dispute resolution methods, while an arbitration clause may force parties to seek resolution to a dispute via an arbitrator in lieu of going to court.

Why would a mediation clause exist in a divorce decree?

The intent of a mediation clause is to prevent unnecessary, expensive, time-consuming litigation about disputes that arise after the divorce is finalized.  For many people who divorce, returning to court is an unfortunate reality.  Having children and child custody issues often leads divorced parents back to court.  Parental relocation, changes to a visitation schedule, issues with blended families, and a myriad of other issues can arise after the divorce is finalized.  Thus, a mediation clause is an attempt to prevent these issues from leading to litigation; however, it is important to understand both the benefits and drawbacks that a mediation clause can have.

What are the benefits of a mediation clause in a divorce decree?

The benefits of a mediation clause are that it can reduce money spent on litigation, if the parties are able to successfully mediate their disputes.  The caveat is that if mediation is ineffective and an arbitration clause does not exist, then litigation is still likely.  The mediation only delayed the inevitable litigation, led to more expense, and perhaps ruined the outcome of the case due to the time-delay.

Mediation should be thought of as the preferable dispute resolution method to litigation or arbitration, but only if both parties will abide by it.  Unfortunately, in reality, one party often isn't content with the mediated outcome and will disregard it.  Thus, a mediation clause by itself is often not effective as a dispute resolution tool for parties that refuse to compromise.  More often than not, a mediation clause should also be followed by an arbitration clause, to protect against situations where mediation fails.

What are the disadvantages to a mediation clause in a divorce decree?

One of the problems that can arise from the existence of a mediation clause is that it can delay the dispute resolution process if one party refuses the outcome of the mediation.  Because mediation is not binding, a party is free to disregard the mediated outcome.  This may force the other party to continue with litigation or whatever other forms of alternative dispute resolution exist in the divorce decree.  The problem with this is their are certain time-sensitive issues that require a speedy resolution.  For example, if a custodial parent takes a child out-of-state without approval from the noncustodial parent, the noncustodial parent might attempt to resolve the dispute via litigation.  But if a mediation clause exists, it can force the two parties to mediate the dispute, wasting precious time.  The time wasted can mean that the noncustodial parent loses the case because a new status quo has occurred and the court might interpret that it is in the best interest of the child for the child to remain in the new location.

A potential solution to issues like that is to also include an arbitration clause in the divorce decree, so that if mediation fails, the dispute is then settled via binding arbitration.  It should be noted that divorce attorneys familiar with the jurisdiction that the divorce decree applies should word to mediation clause and arbitration clause so they cover all of the issues that can arise, including child custody, child support, parenting time, and other issues.

What types of disputes will a mediation clause cover in a divorce decree?

The types of disputes that might fall under a mediation clause depend on the wording of the mediation clause and the jurisdiction where the divorce decree was created.  Different family court judges may interpret a mediation clause differently.  Some judges may ignore a mediation clause entirely and adjudicate (i.e. make a judgement about) the dispute, despite the existence of a mediation clause.  Yet other judges may notice that a mediation clause exists and force the two parties to mediate before returning to court again, wasting precious time and money.

What other alternative dispute resolution measures can be used in conjunction with a mediation clause?

The mediation clause should be thought of as one layer that can help parties resolve disputes without having to go to court.  Placing a binding arbitration clause into the divorce decree adds another layer.  But there are other layers that can help parties prevent disputes before the divorce decree is signed.

A parenting plan
For divorcing parents, taking the time to go through and work out a parenting plan is a great way to think through future parenting issues.  Because going through a divorce is not only an emotionally draining experience, but also a confusing one, a parenting plan can eliminate much of the confusion so disputes are, hopefully, prevented in the future.

Child-centered parenting
When parents divorce, taking a child-centered approach to post-divorce parenting might help both parents put the conflict aside and focus on doing what is right for the child.  High-conflict parenting can result in serious negative consequences for the children involved, so co-parenting or parallel parenting techniques might not only reduce post-divorce conflict, but also lead to more well-adjusted children.

What does a sample mediation clause look like?

There are many ways to word the mediation clause, and different jurisdictions might have different requirements.  For this reason, the attorneys involved in the case should handle the wording and be thouroughly familiar with family law statutes in that jurisdiction.  But there are some basic concepts that apply to how the mediation clause should be worded.

The following concepts might apply to a mediation clause:

Agree to attempt to mediation a dispute
Sample statement: The Parties agree that any and all claims, controversies, breaches or disputes arising from or related to this Agreement, including those pertaining to the formation, construction, performance, applicability, interpretation, or enforceability of this Agreement is subject to a requirement to mediate prior to filing any lawsuit or filing for arbitration.

Rules for mediation
Sample statement:  The mediation shall take place in [location] utilizing a mediator [mediator credentials].  The mediation proceedings will be conducted under the [rules to be followed] in effect at the time a demand for mediation is made.

A description of what happens if parties fail to reach agreement
Sample statement: The Parties agree that there is no requirement to actually reach a settlement to the dispute in mediation, but agree that if a settlement is reached during mediation it shall be reduced to writing and shall be binding upon the parties, their heirs, executors, administrators, successors and assigns.

Adding binding arbitration to the mediation clause
Sample statement: If the dispute is not resolved within [# of days] days after the commencement of mediation, or if no mediation has been commenced within [number of days] days after the first negotiated meeting between the parties, the parties agree that the dispute will be resolved through binding arbitration by a single arbitrator.  The arbitration will be conducted in accordance with the parties’ choice of rules.  The arbitrator's decision will be final and the award will be a reasoned award. The judgment thereon may be rendered by any court of competent jurisdiction. The arbitration will include all parties who are required for a full and final resolution of the dispute. 

How are the fees associated with arbitration should be handled?
Sample statement:  The fees and expenses associated with the arbitration shall be borne equally by the parties, unless agreed otherwise by both parties.

Note that the resources for the above wording can be found by visiting http://coma.com/sample-mediation-clause and http://www.mwi.org/about-mwi-adr-services/adr-resources-adr-services/adr-clause-for-adr-services.html.

Disclaimer:  The content on this page may contain information about legal matters and sample legal clauses, which are intended to be generic and for informational use only.  We make no claim about how a court, judge, attorney, arbitrator, mediator, or any party related to the divorce will respond.  Parties engaged in a legal dispute are advised to seek professional legal counsel in the jurisdiction of their dispute.  Parties are also advised to seek other resources to expand their knowledge of legal matters related to divorce or separation, as the CustodyZen website considers itself an unofficial resource to all issues it discusses.

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