Trying to Add a Provision that Wasn’t in the Mediated Agreement

The parties to a divorce, both represented by attorneys, reached an agreement in mediation and placed it orally on the record, stating that it was “final and binding.” While subsequently drafting the judgment of divorce, Husband’s attorney requested a clause that the parties had agreed to during the mediation. Wife’s attorney initially consented, then refused. The trial court was affirmed by the Court of Appeals: once a “final” agreement is reached, additional terms cannot be added to the judgment unless there is “definitive evidence” that both sides agree. (See Amante v Amante, No. 331542, Court of Appeals unpublished case, June 20, 2017)

In effect, the Wife’s attorney was permitted to change his mind — and/or the Husband’s attorney was punished for neglecting to include the provision in the mediated agreement. There seems to be no dispute that the parties agreed on this point during the mediation, and confirmed it in an email exchange between the attorneys afterwards. The disputed term concerned spousal support. In mediation, both attorneys agreed that spousal support would not be awarded because there was not much disparity in income between the spouses, but their “final” mediation agreement did not mention spousal support either way. Wife’s attorney affirmed in a subsequent email exchange with Husband’s attorney that “spousal support is forever barred,” and even submitted to Husband’s attorney a proposed judgment that included that assertion. But, prior to entry of the judgment, Wife’s attorney emailed Husband’s attorney that the provision barring spousal support was not authorized by his client, and was his unilateral mistake. Husband’s attorney tried several arguments to persuade the court that the statement should be included in the divorce judgment, to no avail.

One wonders whether the mediator raised the question of spousal support with the parties as they were drafting their agreement — “You agreed that there won’t be spousal support here; do you want your agreement to say anything about that?” That question might have triggered a discussion that would have either (1) reminded Husband’s attorney to include the assertion in their agreement, or (2) elicited the misunderstanding between the Wife and her attorney. Either way, it might have avoided all the subsequent litigation.



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