Oh, how the times have changed. . . In 1979, Harvard legal scholar Robert Mnookin coined the phrase “Bargaining in the Shadow of the Law.” The key model of civil litigation was lawyer-to-lawyer negotiation, with the courthouse being the default settlement “chaperone.” Mediation was rarely employed and, even then, generally in the late stages of litigation with a trial looming.
Not only is mediation now an accepted process, but mediation is no longer the essence of ADR (alternative dispute resolution). More popularly coined CDR (consensual dispute resolution) or even PDR (primary dispute resolution, as in the Family Court of Australia), mediation awareness and use have blossomed, with a myriad of models currently available. Mediators are now, more than ever before, receiving the first call from families seeking to restructure their relationships and from lawyers trained as mediation consultants (who family law judges expect to utilize mediation).
Mediation pioneers can lay down their spades and axes. The trails have been blazed. Practitioners, members of the judiciary, and legislators can now survey the cleared wetlands and engage with a renewed conflict resolution community marked by lawyers who also serve as neutrals, interdisciplinary mental health and financial partners, and a fully integrated vision of family mediation as integral to accessing justice.
Attorneys, members of the judiciary, and legislators alike are now exploring a deeper mindset shift as mediation takes hold around the country. Attorneys trained solely in zealous advocacy can now expand beyond their warrior identities that they have maintained and embrace their peacemaking roles through training and balanced practice. They can support and represent family law clients participating in mediation at all stages of the divorce process, preventively create family relationship agreements before and during marriage, and represent parties that return to mediation to work out modifications in original divorce settlements. Members of the judiciary, many of whom have already incorporated mediation referral procedures and litigant education in their standard courtroom protocols, can further partner with private-sector mediators and mediation organizations to steer separating families towards mediation. Legislators in many states throughout the United States prioritize the formalization of mediation statutes, protecting and uplifting this growing process with codified laws surrounding confidentiality in mediation, mediator compensation, and even credentialing.
Conflict fatigue is pervasive in modern society, and families in strife are not looking to add escalation to the many stresses that already impact their lives. They are looking to mediate. Family law practitioners are honoring this social shift by becoming conscientious peacemakers with their clients and colleagues and even in the courtroom. As noted in Effectively Representing Clients in Family Mediation (ABA 2023), “being a peacemaker is not defined by what role you play [in the process], but by how you actively restore and create harmony in your interactions with clients, colleagues, [and] opposing parties.” Many matters can be mediated. Many stakeholders—legislators codifying process protections, judges issuing orders of reference, attorneys trained in appropriately supporting the process, and mediators with a deep toolbox of skills—can contribute to positive outcomes in mediation. Yes, family mediation today is no longer in the early stages of development; it has advanced beyond our wildest dreams.
A Broad Array of Mediated Family Situations
Families turn to mediation in anticipation of numerous life-cycle events. As a space for conflict prevention and conflict resolution alike, mediators are now versed in guiding families through the facilitated negotiation of cohabitation agreements, prenuptial agreements, parenting agreements, post-judgment modifications, surrogacy agreements, open adoption parenting plans, and, of course, comprehensive global divorce settlements.
In determining whether a matter is appropriate for mediation, more attorneys are approaching family challenges with an opt-out mindset rather than an opt-in one, assuming that mediation is always appropriate unless there is a truly significant reason to opt out. Power imbalances in family dynamics are more the rule rather than the exception, and mediation design and management can empower and protect family members. Attorneys who are concerned about potential abuse or misuse of mediation can play more involved roles in the mediation process, maximizing their role as active representatives during mediation sessions as well as coaching their clients from the sidelines in an unbundled manner. (For example, the New York Court system has piloted a new intimate partner violence screening tool that evaluates five pillars of mediation appropriateness, and those administering the screening tool are encouraged to consider whether a weak pillar can be sufficiently “bolstered” by mediation design rather than summarily disqualify a family from access to mediation). While there are, of course, discreet exceptions, mediation is usually worth a try given the high rate of success and lower transaction and human costs.
As marriage rates throughout the United States plummet, falling steadily by over 50 percent since 1972 and reaching the lowest point in recorded history, unmarried partners seeking to formalize their living arrangements, property co-ownership, and family responsibilities are turning to cohabitation agreements for contracted security. Cohabitation agreements are powerful instruments for parties to committed relationships who choose not to marry.
In some circumstances, individual debt or eligibility for critical medical benefits might render formal marriage logistically and financially ill-advised. Some parties to a new, committed relationship might find themselves unable to divorce their legal spouse for religious reasons, or due to protracted litigation, and are not eligible to remarry despite moving forward with a new joint life. For many more, marriage is simply psychologically or ideologically not the right fit. While not registering with the state, many such committed families still seek to formalize their financial responsibilities, property rights, and parenting responsibilities. In platonic dynamics, cohabitations agreements also support roommates as they structure joint lives.
In all these diverse settings, mediators and attorneys representing parties in mediation support parties in defining relationship goals, making legally and psychologically informed decisions about financial and family planning, and developing a contract that accounts for scenarios in which the parties remain together, drift apart, or survive one another. In mediation, parties to cohabitation agreements jointly discuss their visions in a constructive space with transparency, informed consent, and respectful formality.
For those couples that plan to marry, prenuptial (and, when relevant, postnuptial) agreement mediation provides a place to collaborate and tackle challenging topics together in advance of marriage. While most states require that prenuptial agreements be reviewed by individual attorneys representing each party, adding a mediator or an interdisciplinary co-mediator allows for a balanced, nuanced, and holistic exploration and incorporation of a couple’s values and provides positive support for their marriage. While more than 50 percent of people contemplating marriage believe that prenuptial agreements can be helpful, only approximately 10 percent of U.S. marriages pursue one. Many couples fear that prenuptial negotiating will result in discomfort and distress, as emphasis is placed on protection of the wealthier prospective spouse’s finances through retention of top-dollar drafting counsel, while the other party may navigate the process with fewer resources and limited review attorney options. In mediation, the parties sit at the table together (rather than separated by negotiating counsel) and discuss their differences, similarities, and visions for their joint lives. In mediation, couples can also explore unique cultural needs, bringing in religious law and community concerns as they determine how to structure their forthcoming married lives. They can even invite important family members, who may be key decisionmakers in given cultural communities, into the mediation room by mutual agreement and transparently discuss agreement terms that might otherwise be derailed by influential third parties behind the scenes of a traditional negotiation. Prenuptial mediation is well positioned to improve the general prenuptial agreement preparation experience and increase the rate of entry into prenuptial agreements in the United States.
Separation and Divorce
When families seek to restructure the nuclear family unit, through separation or divorce, they are consistently turning to mediation to negotiate the division of assets and liabilities; decide on appropriate child support and spousal support streams; create parenting schedules, decision-making protocols, and pet custody frameworks; and preempt conflict through contracted communication rules and refined routines. Families are able to discuss all topics that inform their reality, personal, communal, and cultural, and are not only restricted to topics that a judge has legal authority to address in a courthouse. While mediations also address all legal terms that are to be included in marital settlement agreements, they extend further and inform comprehensive contracts that can be prepared in the shadow of state law, religious law, and cultural or cross-cultural values.
Elder Care, Adoption, and Beyond
Families are turning to mediation to navigate many life stages outside the marital or cohabiting framework. Elder care and estate planning is increasingly discussed in an intergenerationally mediated context, often diffusing sibling tension and facilitating collaboration where disagreements arise around money, housing, medical care, unequal responsibility, and favoritism among children, many of whom are adults themselves. For those building their families through domestic adoption, birth parents and adoptive parents jointly develop communication agreements determining the appropriateness, nature, and extent of post-adoption contact. (While adoption contests, typically by later-objecting birth fathers, can also be navigated in mediation, communication and visitation disagreements between birthparents and adoptive parents are the more commonly mediated disputes). With a child’s best interests at the forefront, the use of mediation to shift parties from their adoptive or birthparent positions to child-centered thinking can be invaluable.
At nearly every stage of life, mediation is a valuable resource for families as they grow, adjust, rebuild, and reinvent themselves. Family law attorneys specializing in the laws that govern any of these life stages can guide clients to and through mediation, increasing the integrity of the process through law-informed involvement and improving the thoroughness and longevity of resulting contracts and settlements.
The Pathway to Mediation
There are numerous routes for family disputants to find their way to mediation and select a mediator that is best for them. From court personnel referring litigants to courthouse mediators and roster mediators to consumers initiating their own direct calls to private mediation offices, all paths finally do seem to lead to the mediation table. While referral formats vary by jurisdiction, litigants and pre-litigation parties alike are consistently informed of mediation as a preferred process option. Throughout the United States, attorneys are adjusting to this new reality and adjusting their client process consultations accordingly.
ABA Model Rules 1.1, 1.4, and 1.2a, read together, make it clear that attorneys are required to consult with their clients about resolution options in order to serve clients’ best interests. Starting with Colorado in 1993, many states explicitly incorporated ADR provisions in their professional conduct rules, stating that attorneys must advise clients of alternative forms of resolution to litigation. In Connecticut, Georgia, Massachusetts, Minnesota, Missouri, Texas, and Virginia, the requirement that attorneys counsel clients about ADR is mandatory. In Alaska, Arkansas, Colorado, Delaware, Hawaii, Louisiana, and New Jersey, it is encouraged. In Oregon and California, the onus is placed on the courts. In each of these settings, parties are not left to their own devices, stumbling upon mediation as a black market alternative during Google deep dives or Instagram scrolls—the information is transparent, inviting, and systemic.
When courts refer parties to mediation, this is often done by court order or legislative mandate. In some states, judges post large-print recommendations to use mediation directly on court forms or provide letters to all family law parties encouraging parties to self-select into the process. In other states, presumptive or mandated mediation rules put all court-commenced actions on an assembly line where good-faith participation in mediation is encouraged, presumed, and expected, unless there is a significant reason to justifying opting out of the mediation process. The concept of voluntary or involuntary participation has transformed into opt-in and opt-out discussions, where there is deep respect for the mediation process, with decreasing levels of concern surrounding appropriateness based on levels of conflict or complexity. Mediators have proven their capacity to navigate the most difficult of matters through constructive dispute resolution.
Just as more courts throughout the United States have undertaken mandated or presumed mediation-referral practices, more parties are turning to private mediation directly as the first point of contact, for support in managing discovery and legal issues after filing in court, and to resolve late-stage disputes and rescue parties from impasse in negotiation and impending adversarial litigation. Private mediators throughout the country report an increase in inquiries, growing caseloads, and a diverse array of complex matters being resolved in mediation. Professional peer organizations for mediators are growing, with increased rates of new members and improved retention of longer-term mediator-members. Parties are requesting private mediation services, and, as a result, attorneys are expanding their practice skills, receiving training, apprising themselves of the process, and joining peer organizations in order to develop relationships with experienced mediators and provide informed referrals.
Additionally, the ADR community is no longer compartmentalizing processes. In family dispute resolution in particular, cutting-edge professionals are starting to identify the synergy between mediation and collaborative practice. Coworking between practitioners has commenced. For example, consulting lawyers in mediation and lawyers in a collaborative process have overlapping ways of contracting, developing disqualification agreements, supporting clients through the processes, re-training themselves to navigate the processes with an appropriate, constructive mindset, assisting parties with their selection of additional professionals that are integral to the family dispute resolution process, and navigating out-of-court settlement with a shift from strategy to transparency, as supported by the confidentiality of these processes. Families participating in mediation may find themselves encountering financial and mental health professionals from the collaborative space, and families resolving their disputes through collaborative practice may invite mediators to address moments of impasse in negotiation. Process purity is no longer paramount, as practitioners continue to focus on the most important question: “What does this family need in order to move forward?”
Mediation Confidentiality and Its Limits
While confidentiality is a core principle of mediation, addressed in the Uniform Mediation Act as integral to good-faith, transparent participation in the process and codified by the ABA Model Standards for Mediators in Standard VII, the parameters surrounding confidentiality and its protections vary from jurisdiction to jurisdiction. It is important for practitioners to be mindful of the statutes and protections that exist in their State. A growing number of states (Georgia, Hawaii, Idaho, Illinois, Iowa, Nebraska, New Jersey, Ohio, South Dakota, Utah, Vermont, and Washington, plus the District of Columbia) have adopted the Uniform Mediation Act. However, even among those states, many have limited the scope of confidentiality in mediation beyond the language found within the Uniform Mediation Act. Where family law cases are matters of public record, the promise of confidentiality is especially attractive to families that are concerned about informational, personal, and cultural privacy; but mediation confidentiality is not without its limits. Criminal activity and IRS audits may override mediation confidentiality. Most states carve out exceptions for topics such as threats of bodily injury, criminal violence, child abuse and neglect, and professional misconduct or malpractice. California, notably, provides very few exceptions to confidentiality in mediation, while mediation confidentiality has no statutory protection in New York.
Public policy considerations fall on both sides of the confidentiality argument. Where confidentiality is absolute, it is difficult to set aside a mediated agreement even when there was in fact problematically limited financial disclosure or incompetent legal advice, as much evidence would be deemed inadmissible. Where confidentiality is unprotected, financial transparency could also be limited due to limited trust of the process and fear of disclosure. While the prevailing view among mediators is that confidentiality protections are most helpful as they encourage good-faith, transparent negotiation, uncertainty about ultimate optimal safeguards persists.
MOUs, Settlement Agreements, and the Infamous Enforcement Question
As more parties prioritize the use of mediation and as systemic stakeholders recognize its value, courts in all jurisdictions throughout the United States are facing new questions about contract formality and the enforcement of written agreements created in mediation. While approaches vary from state to state (and at times, from county to county), a few conclusions surrounding mediation contract enforcement remain consistent.
The Type of Document Matters
In most jurisdictions, a mediator’s memorandum of understanding (MOU), aka nonbinding term sheet or summary of agreements, is seen as a nonbinding reference document that provides a summary of the terms that parties have agreed to uphold without serving as a contract unto itself. A typical approach to highlighting that such agreements are nonbinding is to not have the parties sign the document, although the nonbinding agreement may include “magic words” to demonstrate the parties’ intent to adhere to its terms.
Some parties seek mediation just to discuss issues and not to have any enforcement mechanism at all. The iconic mediation program for the United States Postal Service created by Attorney General Janet Reno in the 1990s was such a program. Supervisors and employees met with the facilitation of transformative mediators to clear the air and improve their working relationship. Any summary would serve solely to remind parties of agreements made—not to enforce promises either in the workplace or in court.
Parties that seek protection beyond the honor-code handshake at a final mediation session and MOU reminder of mediated terms have a remaining step to consider: the preparation of a contractually binding document that incorporates the terms described in the parties’ MOU. In all states, parties are most clearly protected when they sign a settlement agreement that is drafted and executed as a binding agreement according to the required formalities of the given jurisdiction (i.e., some jurisdictions require that attorneys rather than mediators draft agreements, while other jurisdictions permit mediators to draft binding agreements as long as consulting attorneys are involved; some jurisdictions require that each page of the agreement be initialed and that signatures be notarized, while other jurisdictions additionally encourage the use of witnesses). MOUs formats vary in depth and breadth, from mediator to mediator let alone by jurisdiction, and case law surrounding the enforcement of MOUs is inconsistent within even one single jurisdiction. While many mediators have been pushing back for years and advocating for recognition of non-attorney neutral scribes and their thoroughly drafted MOUs and settlement agreements (leaning on the ABA Section of Dispute Resolution’s Resolution on Mediation and the Unauthorized Practice of Law stating that a non-attorney mediator’s preparation of an MOU or settlement agreement incorporating the terms of settlement specified by the parties does not constitute unauthorized practice of law), reception continues to be mixed.
The most consistent approach across jurisdictions is to transform a mediator’s MOU into a settlement agreement that is drafted and executed in accordance with the given jurisdiction’s required formalities.
The Subject Matter Matters
Just as mediation provides a conflict-resolution space for families whose lives are not clearly protected or regulated by existing laws (families operating under cultural and religious laws that are not recognized in U.S. courts, group and polyamorous families whose status and parental rights and obligations are not protected by existing laws), contract enforcement is complicated when judges are tasked with examining topics that are not within the scope of a given jurisdiction’s domestic relations laws. When parties to such family dynamics form contracts after a mediated process, full recitations of intentions and aspirations, clarity surrounding informed consent and the absence of duress, and the formality of contract formation become even more important, as a court of competent jurisdiction may have only basic contract law precepts to consider when evaluating an enforcement dispute. With proper contracting, adhering to all contract formalities required in the given jurisdiction, such families can remain protected even when addressing topics that courts may not typically entertain.
To support mediation parties’ intentions, while the following is not a substitute for contract formalities in any jurisdiction, we suggest that mediators who prepare MOUs/term sheets/mediation summaries add these “magic words” to their document templates:
It is the parties’ intention that this MOU/Term Sheet/Mediation Summary shall be a valid and enforceable agreement in this jurisdiction and, if submitted to a court by either party, this MOU/Term Sheet/Mediation Summary shall be admissible into evidence as a completed agreement or stipulation of the parties (notwithstanding that it was prepared and drafted in a confidential mediation) and the court shall consider the terms of this document as a valid and enforceable contract, binding the parties.
These “Magic Words” may be modified; however, they provide a foundation for parties to leave mediation with a binding agreement.
The New Era of Mediation
Many families have realized that, while laws, regulations, and court policies evolve gradually, mediators can more readily adjust their practices to encompass the realities and needs of a progressing society. As we continue to inhabit a world with expanding definitions of family, global citizens with multijurisdictional and multicultural identities, and systemic institutions struggling to keep up with a rapidly shifting set of needs, families will continue to turn to mediation as their primary process choice. Mediation is no longer an “alternate” approach for families seeking resolution to their disputes. With consistent incorporation into routine courthouse procedures, evolving legislation surrounding confidentiality and process integrity, and widespread consumer awareness, mediation has become the priority process for family disputants. The new era has arrived. Now we can lean in, partner with all stakeholders, legislate comprehensively, and pursue mediation’s boundless possibilities now and in the decades to come.
The authors, together with the Hon. Elizabeth Potter Scully, recently co-authored the book Effectively Representing Clients in Family Mediation (ABA Family Law Section, 2023). This is Forrest Mosten’s sixth book published by the Family Law Section. The book’s authors are currently working on their next book, Essential Guide to Mediating Family Disputes (forthcoming in 2024).