Part Two    Click here for Part One

Save your clients’ money and insist that your suggested language be inserted into the mediated agreement.

By T.E Cauthorn, Former Judge, Family Lawyer

The mediation began at 9:00 a.m. Now, it is almost 6:00 p.m. The most recent joint session ended with everyone finally agreeing that everyone agrees on everything, including (gasp!) attorney fees. You look at opposing counsel and she says, “the mediation agreement written by the mediator will be followed by a formal settlement agreement prepared by counsel, with all the usual recitations and language.” Your client looks around the room and loudly inquires of everyone, “Does this mean this case is over?”

You are always concerned that a party will develop settlor’s remorse. You know from experience that when this happens, no force on earth is strong enough to get their signature on the “formal settlement agreement”.

You ask the other lawyer to include language in the mediation agreement that it is the final and full settlement between the parties and it will be incorporated into the Final Judgment and Decree of Divorce in the event the formal settlement agreement is not signed within ten days of the mediation. Without blinking, the other lawyer says, “I don’t think that will work.” After a few minutes on a legal pad, she pushes the pad over to you and you read the following:

This is an agreement in principle & is not final & not binding on the parties unless & until a comprehensive settlement agreement has been signed by the parties.

You know no matter what the mediator puts in the mediation agreement, the parties were unable to reach a full and complete agreement on the issues and the purported mediated agreement is nothing more than an agreement to agree.

The law in this area is pretty clear. The consent of the parties to each of the material terms of the contract is “essential” and until the parties do consent to each material term, the contract is incomplete. O.C.G.A. § 13-3-2.  Put more succinctly, an “agreement to agree” to terms in the future is not a contract.  If a contract fails to establish an essential term, and leaves the settling of that term to be agreed upon later by the parties to the contract, the contract is deemed an unenforceable “agreement to agree”.  See, Kreimer vs. Kreimer, 274 Ga. 359 (2001).

In this instance the suggested language from opposing counsel states that it is “.  .  . not final & not binding on the parties unless & until a comprehensive settlement agreement has been signed by the parties.”  If this language is included in the mediated agreement it will specifically contemplate another agreement, a comprehensive settlement agreement between the parties.  The purported mediated agreement will be nothing more than an agreement to enter into another agreement in the future, the terms of which are not agreed upon.  The purported mediated agreement will be unenforceable as a matter of law.

Now is the time to lock your knees and look the other attorney straight in the face and tell her that you have no intention of allowing your client to sign a mediated agreement that will certainly result in future litigation. You prefer litigating the divorce case to litigating an agreement to agree.

You must insist that your suggested language be inserted into the mediated agreement. You are saving your client’s money. If you do not insist on your language the case is not settled and the parties will waste time and dollars litigating something that is not calculated to lead to a resolution of the divorce case.

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T. E. Cauthorn has been practicing law in Georgia since 1972. Mr. Cauthorn served as a State Court Judge and then a Superior Court Judge before resigning his seat in 1991 to return to private practice. Since co-founding Cauthorn Nohr & Owen, Mr. Cauthorn has been responsible for obtaining significant compensation for injury victims, resolved countless divorces, civil disputes and business issues to his clients’ benefit, and successfully appealed numerous civil and criminal cases.