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“Mediate First” Provisions: Pros and Cons

Oct 16, 2020 | Written by: Diana N. Fredericks, Esq. |

Many marital settlement agreements contain clauses often referred to as “mediate first” provisions.  These clauses, often embedded in boiler plate language, are sometimes overlooked or not discussed prior to signing.  Be aware that such language in your agreement may impose strict contractual obligations upon you and your (former) spouse and may have unforeseen consequences. 

A “mediate first” provision (depending upon how it’s drafted; be sure to examine your agreement) typically requires the litigants to attend mediation before they may file a motion with the court.  

As a former judicial law clerk, I was taught to first check the agreement before spending any substantive time on post-judgment motions (except in true emergencies).  A “mediate first” provision enables the court to enforce same, ignore any and all substantive relief and force the parties to mediate first, as they agreed, before the judge can be called upon to make any rulings.  In my experience, judges today employ the same tactic and approach when these “mediate first” provisions are not adhered to by litigants before coming to the court.

As a practitioner, in post-judgment matters in which I did not handle the underlying divorce litigation, the first thing I look for when reviewing the parties’ marital settlement agreement is a “mediate first”  provision or clause that addresses alternate dispute resolution before either party can apply to the court for relief.  If there is a “mediate first” provision or some iteration thereof, that immediately dictates how the case needs to be handled.  It is shocking how many times litigants tell me that they were unaware of that clause, had not discussed it with their attorney, and did not appreciate its meaning.   

If your agreement has a “mediate first” provision, or something similar, it is imperative to know this before you incur the time and expense of preparing a motion.  If you file a substantive motion seeking relief from the court before addressing the “mediate first” provision, the judge will likely “punt” and require you to attend mediation first and refile your motion if you are not successful.

This can be extremely frustrating when trying to enforce terms that were already agreed to and finalized.  Why should you have to mediate that which was settled?  Worse yet, what if your former spouse refuses to mediate?  In some cases, a letter from your counsel addressing the required mediation can be of some assistance in prodding the matter forward.  In some cases, it is unfortunately necessary to file a motion to compel/enforce the “mediate first” provision.  This can be strategic in that it will demonstrate a party’s (potential) unreasonableness and refusal to comply, which can (and should) lead to an award of counsel fees for having to file a motion to compel the mediation in the first place.  If mediation then fails, this also sets the stage for the judge to (potentially, and determinant upon the facts of your specific case) see that one party has not acted reasonably. 

Another option to consider is an opt-out type provision for the “mediate first” requirement.  By doing so, you can provide that the “mediate first” provision expires if one party does not respond or schedule mediation within a certain timeframe.  In some post-judgment cases, we have even submitted a consent order to void the “mediate first” provision when the parties can agree that it is not a useful or effective tool.  That is the other extreme, but it is not uncommon to fail to appreciate what will happen post-divorce and how your agreement will be enforced. 

Mediation is a wonderful tool and can often settle cases and allow for creative control over the conclusion of your case (or issue), rather than a judge dictating same.   It can also be a more cost-effective approach to litigation.   However, you want to be sure to understand your obligations and whether you are required to mediate.  

If you are required to mediate, how are the fees shared?  Who is the mediator and, if one is not named, how is the mediator to be selected?  What happens if the parties cannot agree?  All of these questions need to be addressed in detail if there is going to be a “mediate first” provision. 

There are definite pros and cons to such language in an agreement.  It is imperative that your attorney discusses these with you before you sign anything, and that you understand the implications of such a provision.  

Diana Fredericks, Esq.

Diana Fredericks, Esq., is a partner with Gebhardt & Kiefer, PC and devotes her practice solely to family law matters.  She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters in 2015, 2016, 2017, 2018, 2019 and 2020, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015.  Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.

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