The Difference Between a Mediated and a Litigated Agreement

{3:48 minutes to read} When comparing mediated and litigated agreements, the first thought that comes to mind is that a mediated agreement would have terms that are balanced, would be more creative and would more accurately reflect exactly what the parties believe is best for their families.

The Language
Another important difference is in the language itself. Without considering the actual terms, one can see a difference in the terminology used in an agreement drafted after a mediation versus the terminology used in an agreement drafted after an adversarial process:

• The tone of an adversarial agreement is, well, adversarial – – legalistic, stiff, impersonal, cold;
• Parties’ names are not used in a litigated agreement; instead they are referred to as husband/wife, plaintiff/defendant;
• The terms custody and visitation are used in a litigated agreement as opposed to parenting plan and access with the children when mediating.

It’s more than the use of certain words, though. An agreement that is drafted by an attorney who is working solely for the benefit of her client, ends up being just that. There are phrases that are used that may not seem important to you as a client, but the other party’s attorney certainly will recognize them and object to them. At the same time, that attorney will be including certain phrases and terms that benefit only his client.

The Devil is in the Details
Another difference is that an adversarial agreement assumes that there will be problems between the couple, no matter who the couple is or how they relate to each other. So, a non-mediated agreement typically includes the minutest of details for an issue:

• Defining the number of minutes that constitute acceptable delays when returning children;
• A mandate to provide the other parent with 5 days notice if you want additional time with a child.

A mediated agreement will provide additional details when the couple needs them, but is not burdened with such extraneous language if it’s not necessary.

Since I no longer litigate, I only see these differences when a mediation client takes the agreement to be reviewed by an attorney who mostly litigates. I have had clients who were completely capable of making agreements between them and in fact, had been living separately and without discord for a period of time. Yet one of their attorneys added over half a page of detailed language in quite convoluted legalese, which effectively said that the parties may agree to additional access with the children. If the parties agreed to the additional access time, was this burdensome language necessary?

This is not to imply that a mediated agreement is less “legal.” A mediated agreement is as thorough, complete and enforceable as an agreement derived from an adversarial proceeding. More importantly, it is three more things: 1) It is based upon terms that both parties have determined for themselves and agreed upon;, 2) it is only as detailed as the particular clients need it to be; and 3) the language is personal to them and clearly understood.

Comments from Social Media

Well said, Clare! That is a good reason for the clients to use mediation friendly review/consulting attorneys even if those attorneys are also litigators.

Lauren Morrissey