Mediated Settlement Agreements are misunderstood in the litigation and family law contexts.
In both scenarios, the parties have agreed to attend mediation which is a private settlement conference with a retired judge or seasoned attorney acting as a mediator. However, in one instance, the mediated settlement agreement typically settles the entire case, while that is not always the case in the family law context. I often have clients who have second thoughts about them after an agreement is made, or they may want to change one or all of the provisions. I want to briefly clarify what Mediated Settlement Agreements (MSAs) are, how they function in the civil law and family law context, and what you should know before you sign one if you are currently dealing with an active court case.
1. An MSA is irrevocable.
This means that once you sign an MSA and it is filed with the Court, you cannot change its terms. These agreements are favored by Courts because they take a substantial burden off the courts' dockets of outstanding cases. Judges want people to settle their own disputes whenever possible. Whatever terms are laid out in an MSA are either memorialized into a joint dismissal (non-suit) dismissing the case entirely, or are drafted by one of the parties' lawyers as an Order to be signed by a judge.
2. An MSA could completely resolve the issues in your case.
If you have a signed a mediated settlement agreement before trial in a civil case, there is a good chance that the terms of your MSA will totally resolve the case, resulting in a settlement award for you or the other party, and avoiding the necessity of taking a case to trial before a judge or jury. An MSA is a cost-effective way to resolve claims, particularly in the civil context. The attorney's fees, time spent in court, and the legwork of obtaining the necessary witnesses to appear at trial are eliminated if you reach an agreement at mediation that is memorialized in an MSA. This is not always the case; however. An MSA could be a partial agreement, only resolving some of your claims. But even if this is the case, you have narrowed your issues before trial and probably shortened the length and duration of the time you spend in court.
3. An MSA could lay the groundwork for the rest of your case.
Family law litigants: this one is for you. An MSA on temporary orders is exactly what is claims to be: an agreement on the temporary orders in your case. This agreement specifies who will live in the family home, who will pay child support and in what amounts, and what the temporary possession and access provisions are for your children while the case is pending. The MSA is important because it allows both parents some control over what the status quo will be while the divorce is ongoing, resulting in hopefully some stability for your children and a predictable schedule of when they will see mom and dad.