For whatever reason, it is not unusual for a Marital Settlement Agreement and/or Custody Agreement to have a mediation clause in it which requires parties to go to mediation before bringing an issue to the Court by way or motion.  For some issues, like enforcement, one questions the obligation to go to mediation.  Either someone violated the agreement or they didn’t.  Other issues require a more swift decision and mediation could only slow the resolution down, especially for the party who might benefit from the delay.  And while we see these clauses all of the time, I have also seen many judges ignore the clause and adjudicate the dispute. 

This, however, is not what happened in the Decilveo n/k/a Woolf v. Decilveo case decided today by the Appellate Division in an unreported (non-precedential) opinion.  In this case, the parties divorce agreement stated:

In the event that any differences arise out of the interpretation, construction or
operation of this Agreement, the parties further specifically agree as follows:

(a) They shall first attempt in good faith to resolve such differences amicably and directly with each other, retaining the right to seek advice of counsel;

(b) If they are unable to resolve any dispute between themselves or with the assistance of counsel, or through mediation, either side may submit same to a Court of competent jurisdiction for resolution.

Arguably, this provision does not appear to specifically apply to enforcement or modification, two major parts of this litigation but the trial judge interpreted the agreement broadly, forcing the parties to mediation to address their numerous disputes. 

Not only that, the trial judge granted the defendant’s cross motion to hold plaintiff in violation of the Agreement for failure to attempt mediation prior to filing her motion and directed the parties to attend mediation "to resolve any and all outstanding economic issues between the parties."

Citing Parish v. Parish, a case that I know a little about since it was my case, the plaintiff argued that the Agreement’s "restraints" on her right of immediate access to the courts to have claims adjudicated violated the Due Process Clause of the Fourteenth Amendment.  In Parish, the Appellate Division found that a trial judge’s order requiring the parties to try to settle their disputes by holding a four-way conference before filing post-judgment motions to be an impermissible restraint on a party’s due process right of access to the courts.

The Appellate Division distinguished Parish noting that, in this case, the parties voluntarily agreed
to attempt to settle their disputes through mediation before filing in court.  The Court noted that while a court cannot prohibit access to the Court’s the parties can and did do so by agreement. 
Moreover, the Appellate Division further noted that "mediation is a recognized and appropriate process for the voluntary resolution of family disputes."

So the take away from this case is that if you are going to include a mediation in your agreement, some consideration should be given as to whether it should be for all issues or whether things like enforcement or emergencies should be exempted from mediation.

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