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what happened in the Decilveo n/k/a Woolf v. Decilveo case decided today by the Appellate Division in an unreported (non-precedential) opinion.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.