What is a Mediation Agreement?
Typically, a mediation agreement is a document that serves as a resolution to a conflict, regardless of whether it’s a court-related dispute or a private one. It contains the terms of who is going to do what for the other party, and if applicable , a waiver to dismiss the case filed in court with instructions to the court. A mediation agreement usually has no judicial signature as the parties are resolving the matter outside the court system. The purpose of the mediation agreement is to resolve the dispute by stipulating to the waiver of the legal action.
Mediator’s Role in Mediation
The role of a judge is mediation may, at first blush, appear to be simple. After all, we know what judges do. They adjudicate disputes brought to them in court. However, their role is not automatic or universal. A judge only signs a mediation agreement when the parties wish to obtain an immediately enforceable judgment. Most often, they do not in family law matters. The differences between the use of judges in civil versus family cases is particularly instructive.
In Minnesota, parties frequently enter into a "Stipulation" during the course of litigation. A Stipulation is a document prepared by the parties through negotiation that records the resolution of some or all of the issues they are litigating. The Stipulation must be signed by the parties, and then submitted to the judge for signature. When the judge has signed their approval, it is binding on the parties and becomes a court order (the Stipulation is actually an Order for Judgment, which finishes the case). Because we recognize that people voluntarily resolve their differences, and we do not require that they be mediated for this to happen, the Stipulation process represents a form – if you will – of mediation. Lawyers adopt the role of "mediator" here, without ever having themselves entered into a mediation training program.
The work of Judge is also commonly found in what is known as a "Consent Decree." In reality, a Consent Decree is no different than a Stipulation in that it is a document signed by the parties in which they resolve their differences outside of court. In contrast to a Stipulation, however, which is prepared after the litigation has begun, a Consent Decree is typically prepared prior to the beginning of litigation. That, however, is not the key difference. In fact, we have no Minnesota law requiring that a Stipulated Resolution be submitted to the Judge at the conclusion of the litigation or be deemed invalid. In other words, any party could simply present a Stipulated Resolution to the Court at any time in the future. But for the volition of the parties themselves, in reality, a Stipulated Resolution could be self-executing.
Ultimately, a Stipulation or Consent Decree must be signed by a Judge. However, the Judge will likely be serving a most passive role, as the parties could simply present the Stipulated Resolution to the Court on their own, by a process called a "Bare Bones Request for Order for Judgment and Entry of Judgment and Decree." As such, the primary function of a Judge’s approval of a Stipulated Resolution is that they will agree to in their order(s) the disposition of all of the matters presented in the Stipulated Resolution. Whereas, a Judge must be involved in most evidentiary hearings or contested final hearings, for the family law equivalent of a Stipulated Resolution, a Judge must only approve the Stipulated Resolution itself. The Judge is a passively engaged document signing agent.
This passive nature of the work performed by the Judge is in sharp contrast to their role in "full" court hearings (i.e. evidentiary hearings or contested final hearings). In those situations, the parties present the evidence they wish to offer as to the issues in dispute. The parties have usually had an opportunity to prepare. The Court is actively engaged, asking questions, guiding the parties, and, above all else, making findings of fact and conclusions of law as to the issues in dispute. Because of this, however, a resolution is less likely and, as such, a skilled and determined planner will utilize mediation as a means to finalize their case without an evidentiary hearing. Indeed, our law directly allows the parties to mediate their differences without the need of a Court or judge:
"Parties to a dissolution may, during the proceeding or subsequent to it but prior to entry of judgment, submit a written stipulation to the court and ask that it be approved and adopted as the decree. If the court approves the stipulation, it shall make findings of fact upon the matters agreed to in the stipulation and enter judgment pursuant to the stipulation." Minnesota Statutes, Section 518.145
Whereas a Judge is required to complete the last step in finalizing a resolution, once the mediation is complete a Stipulated Resolution can exist independent of further judicial involvement.
The Role of the Judge in Mediation
Lack of a judicial signature on a mediation agreement can have the following implications for participants and/or their counsel:
1. It is my firm belief that the lack of a judicial signature on the mediation agreement of any sort, whether or not the agreement has binding effect under faulty municipal law, acts to vitiate any alleged waiver of litigants’ rights.
If an adopted mediation agreement would have the effect of denying access to or waiving participants’ legal or constitutional rights (assuming sufficient significance that they would be deemed fundamental legal rights), the lack of an accompanying judicial signature for that mediation agreement could allow the mediation agreement to be attacked as having no binding effect.
2. Many courts view settlement disputes that are otherwise subject to court control and supervision as having proscribed methods for resolution.
This usually means that such disputes must be handled by at least one of the presiding judges of the trial court or appellate court shuttling back and forth between the parties and/or their counsel attempting to bring the case to resolution. While this court control is understandable as a policy matter, it can prove debilitating in circumstances where the litigation is so bitter that such direction by a court would be much more likely to prolong the dispute than to resolve it.
The absence of a judicial signature on the mediation agreement might prove problematic because it allows a party to resist judicial control or supervision of any settlement disputes arising out of the mediation agreement. This could prove difficult from the standpoint of managing the court’s precious docket and trial calendar.
3. Consider those situations where by law a judicial approval is required but a judicial signature is absent.
Such disputes are often of great significance, and as such, can often be the source of considerable controversy. Examples of some of these disputes are: (i) appeals with regard to the legal basis of a settlement, (ii) approval of a settlement of class action litigation, and (iii) the proper interpretation of a settlement agreement before issuance of the various orders and judgments necessary to implement the same.
Absent a judicial signature on the mediation agreement, it is conceivable that a party would attempt to exploit this issue, and the respective litigation would increase.
4. A court may have the requisite authority and resulting jurisdiction over a signing of a mediation agreement that does not have such signature of approval.
However, whether this court control is sufficient to allow the court to exercise its judicial and legal authority over disputes arising out of the mediation agreement is highly questionable. If no judge was willing to approve or endorse the mediation agreement, how could the court exercise its judicial authority to enforce the settlement agreement?
It is probable that such a dispute would go to the appellate level for resolution.
Consequence of a Judge’s Lack of Signature
A judge who is considering whether to sign a mediation agreement may be doing so for a number of reasons. As detailed below, these reasons may be procedural, legal, or clerical.
If the parties did not request a judge’s signature on the mediation agreement, the judge is unlikely to sign the agreement. Parties must affirmatively request the judge’s signature, using court forms
MC-060,
MC-061 and
MC-062. A judge may also decline to sign if the petitioner fails to file the mediator’s declaration form (FL-391) within 10 days after the agreement is reached. The failure to file a declaration also explains why many finalized agreements are not signed by a wayward judge; parties completely forget to file the proper forms at all.
A court may decide not to sign an agreement for legal reasons as well. If the agreement includes issues beyond the scope of the court’s jurisdiction, or imposes additional obligations not supported by statutory authority, a court will not be able to sign the document with mere boilerplate language. In this case, it will be the court that decides whether to secure the settlement agreement in the absence of judicial approval. However, because most family law settlements do not require court approval, these types of circumstances are less likely to arise.
Reasons for a Judge’s Failure to Sign
Court approval/entry of a consent judgment is not required for a mediation agreement to be enforceable and have the power of a contract, as long as one of the parties can show that the mediation agreement is valid and the other side has breached its obligations under the mediation agreement. Keller Williams Realty Southwest, LLC v. Herr, No. 14-17-00477-CV, 2018 Tex. App. LEXIS 1623 (Tex. App.—Houston [14th Dist.] Feb. 6, 2018, no pet. h.).
The Keller Williams decision is not binding on the Oklahoma Court of Civil Appeals. However, the Keller Williams decision is instructive as to how long litigation and costs are not always required to resolve disputes that the parties believed they had already settled. In Keller Williams, the plaintiff Keller Williams Realty Southwest, LLC (Keller Williams) and the defendant Sally Herr executed a mediation agreement in which Keller Williams agreed to pay Herr $28,000 and Herr agreed to cooperate in the transfer of Keller Williams’ interest in real property to Herr. Id. at *1. After Herr filed a motion to enforce, the trial court held a hearing on the motion and signed a judgment enforcing the settlement agreement. Id. Thereafter, Keller Williams appealed arguing that the mediation agreement was not enforceable.
In agreeing to mediation, Keller Williams and Herr agreed to resolve their dispute through Alternative Dispute Resolution (ADR) and obtained a mediation agreement/memorandum of settlement from an ADR neutral. Keller Williams did not, however, ask the court to approve or enter the mediation agreement. Nevertheless, the court enforced the mediation agreement and signed a judgment. Keller Williams argued on appeal that because the mediation agreement was never approved and entered by the trial court, it was unenforceable. The Keller Williams court, however , did not follow Keller Willaims’ argument in that it stated that Keller Williams had failed to preserve error regarding the mediation agreement by not objecting when the settlement agreement was presented to the trial court. Id. at *3. Keller Williams waived any argument regarding the enforceability of the mediation agreement by failing to object. Id. at *4. The Keller Williams court also held that Keller Williams could not show that the mediation agreement had no basis in fact or law. Id. at *7. The Keller Williams court accordingly found no abuse of discretion by the trial court in enforcing the unapproved mediation agreement. Id. at *8.
In Keller Williams, three members of the Houston-based Keller Williams Realty Southwest, L.L.C. franchise ended a four-year legal fight when they signed a settlement agreement in mediation. Id. at *1-2.
The Keller Williams court held that Keller Williams had breached the terms of the mediation agreement. Id. at *8. The Keller Williams court also stated that the lower court was in "no position to undo (Keller Williams’) promises" before the other party (Herr) could rely on the mediation agreement. Id. Ultimately, the court entered judgment, including an award of attorney fees and costs, to Herr. A motion for attorney fees under the mediation agreement was not presented to the lower court until after the judgment. Id. at *9. Herr then filed a supplemental motion for attorney fees after Keller Williams served its appellate brief on appeal. Id. at *9-10. The Keller Williams court stated that it would not consider evidence outside the record, including affidavits, and that this evidence was not properly before the panel. Id. at *10. However, the panel noted that attorney fees may be recoverable under the mediation agreement in that the mediation agreement provided that the party bringing the action to enforce the mediation agreement (Herr) is entitled to recover reasonable attorney fees, costs and expenses. Id. at *10-11. The Keller Williams court indicated that awarding Herr attorney fees under the mediation agreement was within the scope of a remand ordered by the Keller Williams court. Id. at *11.
Executors in Mediation: Enforcing Agreements Without a Judge’s Approval
Consider the case of Brunner v. Industrial Maintenance Service, Inc., (91 F.3d 38, 2d Cir. 1996). In this tragic and preventable example of an unenforceable mediation agreement, the parties’ attorneys attested that the agreement was binding and enforceable, and their law firm’s disbursement check indicated that the payment was made as an advance pursuant to the mediation agreement. The parties consented to binding arbitration and the arbitration award was reduced to judgment in the United States District Court for the Southern District of New York. The judgment was subsequently vacated based on the fact that the arbitration award violated the parties’ agreement that they would mediate before proceeding to binding arbitration. The Second Circuit affirmed the lower court’s ruling and opined: "[C]onflicting statements as to the binding nature of the mediation agreement … and the lack of any detailing as to what the mediation agreement itself provided do not amount to ‘written evidence’ of the content of a mediation agreement. The parties were free to fashion whatever type of agreement they themselves chose, including a binding or non-binding option. The absence of any description of the terms of the mediation agreement, other than those set forth in the unsigned document obtained during the mediation itself, are insufficient to establish ‘written evidence’ of the content of the mediation agreement." See also, Tigg v. Russell Sage College, (287 A.D.2d 704, 735 N.Y.S.2d 546, 3d Dept., 2001)(Mediation agreement which required parties to submit all claims to arbitration and then be readvanced to mediation if no settlement was reached was not properly enforced by Supreme Court which was unaware of its terms); and Florida Apartment Ass’n v. Universal Prop. Serv. Syst., (660 So.2d 413, 1995 WL 543776 (Fla.Cir.Ct.Jul.19, 1995)(Mediation agreement was partial and not enforceable to extent it was missing signature of mandated arbitrator who consented to act as mediator.
Examples and Case Studies
A party unable to immediately obtain a judge’s signature on a mediation agreement can still take steps to protect their own interests. The best method is to simultaneously file an uncontested motion for approval of the settlement agreement along with a notice of unavailability with the Court. This way, the judge will review the existing mediation agreement, complete the task by signing the document and will send a copy to each party. There should be no question about the validity of a fully executed mediation agreement where no objection has been filed.
On the other hand, a party can also be protected by the filing of a motion to enforce the mediation agreement in conjunction with the notice of unavailability in order to simultaneously avoid an ex parte application. Although an application to enforce a settlement agreement is not a "true" ex parte application because it requires advance notice to all parties, many judges will still process it without oral argument if the signed mediation agreement is attached to the motion. If, however, a party who wants to object to the settlement position or challenge the terms of the mediation agreement fails to file an objection and then sits idle on his hands, a court will be disinclined to let them challenge the settlement after the fact. A motion to enforce, by comparison, will get a party into court and on record as someone who was not willing to settle their case, but that is not the ideal situation.
It is important to keep in mind that any stipulation regarding the allocation of parenting time agreed upon in mediation is not binding on the parties and, in fact, the judge will often ask for input from each party at a post-mediation conference regarding settlement proposals if the parent-time proposal is problematic for one of the parties. The terms of this new parenting plan will be incorporated into a court order or, if the parties disagree, there will be a full, free and fair opportunity for the parties to litigate this issue. Accordingly, a party should not go forward with a "bad" parenting time agreement simply because it brings the parties to closure and avoids further litigation, especially if there are issues that need to be litigated or re-evaluated.
How Litigants May Protect Themselves
Regardless of whether an agreement is entered as an Order of the Court or simply results in a "handshake agreement" between the parties, this does not mean that it is supposed to be ignored. Once an agreement has been reached, it is important to take the necessary steps to ensure that the agreement is solidified and finalized and that you are prepared in the event that the other party fails to abide by the terms of the agreement.
At the end of the day, regardless of violations of the terms of an agreement by one of the parties, if an agreement is not included in any Order of the Court, a judge will not be able to "sign off" on an enforcement matter that is filed with the Court. Thus , in some cases it is best to pursue the entry of the document as an Order of the Court and then so long as the agreement is completed in compliance with the parties’ agreement with an incorporated Order, a motion to enter an agreement into an Order of the Court may not be necessary. Nonetheless, as with all legal matters, if an agreement is reached with a party to litigation, you should seek the assistance and advice of an attorney to learn how you may best protect yourself and your family from unpleasantries that may arise from the nonperformance by one of the parties to the agreement.