Agreements versus Mediated Agreements Enforced in Family Courts

There is definitely a Difference in Agreements

Agreements and mediated agreements are both forms of contracts or understandings between parties, but they differ in terms of how they are created, the processes involved, how they are viewed in court, and enforcement. Below are the key differences:

Parties and Mediator

1. Definition

• Agreements: These are mutual understandings or contracts between two or more parties that define particular terms, conditions, and obligations. They may be formal or informal and do not always need or use a third-party involvement. They are normally not confidential and can be verbal/nonverbal, written and/or unwritten.

• Mediated Agreements: These are agreements that are reached with the assistance of a neutral third party, known as a mediator. The mediator helps facilitate discussions and negotiations to help the parties find common ground and reach a mutually acceptable resolution. This resolution is written and agreed to by signature of the parties and mediator involved in the mediation. This agreement especially in Family Court is binding.

2. Process

• Agreements: The process can be direct negotiations between the parties involved, where they discuss and agree on the terms without external assistance. Or they can be assisted with a negotiator such as an Attorney.

• Mediated Agreements: The process involves a mediator who guides the conversation, encourages open communication, and helps the parties explore options to resolve their disputes or differences. The process is confidential and the agreement is written. The agreement is only legally enforceable if all relevant parties agree by signature.

3. Role of Third Party

• Agreements: A third party involved in the negotiation and formation of standard agreements can be optional. In Family Court cases, parents will utilize this process many times amongst themselves. If it is not followed, they are many times forced to litigate throught the court systems to create a new plan led by the Judge.

• Mediated Agreements: A mediator plays a crucial role in the process, providing structure and support to help the parties communicate effectively and reach a resolution in writing that is considered binding in the eyes of the law.

4. Outcome

• Agreements: The overall outcome depends solely on the negotiations and compromises made by the parties involved.

• Mediated Agreements: The outcome is often more collaborative, as the mediator should help ensure that all parties feel heard, seen, and that the agreement reflects a balanced resolution.

5. Formality

• Agreements: They can be formalized through written contracts or can be verbal agreements, depending on the context and legal requirements.

• Mediated Agreements: These are usually documented in writing, often with the mediator's assistance, to ensure clarity and enforceability.

  
  

  

  Elbow Agreement - Two cheerful people touching elbows in agreement in a coffee shop.

6. Use Cases

• Agreements: Commonly used in child support, child custody/parenting time, business transactions, personal contracts, and various legal contexts.

• Mediated Agreements: Frequently used in many conflict resolution scenarios, such as family disputes (divorce, separation, child support, child custody / parenting time), workplace conflicts, and community disagreements.

7. Enforceability

• Agreements: Must be resolved/litigated through the courts. For Family Court, a new matter such as establishing an order or a modification must be established. The agreement is "considered", but the new plan is determined in a contested case by the Judge.

• Mediated Agreements: Typically legally binding and is enforceable as contracts but often include a provision for enforcement through mediation or arbitration rather than litigation. In Family Court, the aggrieved party can request enforcement of what was agreed to in the agreement instead of being forced to create a new plan determined by a Family Court Judge.

  Key Differences:

  • Resolution Method:

    • Agreements: Resolved through litigation in court.

    • Mediated Agreements: If issues in following there is an opportunity to be resolved through mediation or arbitration, which is generally less formal and quicker. This is normally agreed to in the initial agreement. Parties must attempt in these venues first before taking it to court.

  • Formality:

    • Agreements: Usually more formal and may require specific legal language. Hence why attorneys are many times used.

    • Mediated Agreements: Can be less formal and more flexible in terms of language and structure.

  • Cost:

    • Agreements: Often incur higher legal fees and court costs.

    • Mediated Agreements: Typically less expensive due to reduced legal fees and faster resolution.

  • Control:

    • Agreements: The outcome is determined by a judge or jury.

    • Mediated Agreements: The parties involved have more control over the outcome and can work collaboratively to reach a resolution and/or point to what was already agreed to without being forced to change what was already agreed.

  
  

In summary, while both agreements and mediated agreements serve the purpose of establishing mutual understanding between parties, the key distinction lies in the involvement of a mediator and the collaborative process of reaching an agreement in the latter, and also the level of enforceability especially in Family Courts.

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