In 2013, the Supreme Court of the United States ruled on the case of Willingboro Mall, LTD v. 240/242 Franklin Avenue, L.L.C. The case involved a property dispute, which appeared to have been settled in mediation through a series of verbal discussions. Willingboro later rejected the settlement, which resulted in Franklin Avenue filing a motion to enforce the settlement agreement, based on certifications from its attorneys and the mediator that a verbal agreement had been reached. The Supreme Court ruled in favor of Franklin, but advised that going forward, settlements achieved through mediation must be put in writing in order to be enforceable.
While the Willingboro case has nothing do with divorce, it does have a whole lot to do with the mediation process, and whether or not it could work for you. The most important aspect of the Willingboro case is the requirement for settlements to be drafted into a written agreement. This sets mediation apart from other forms of divorce resolution, where a verbal agreement may be enforceable based on the communications that were made between the spouses. In order to determine whether an agreement had been reached, the court would question each party during a plenary hearing, commonly referred to as a Harrington hearing.
Since you will not be able to dispute the validity of a verbal agreement reached in mediation, you will need to determine whether it's a workable method for you and your spouse. Are you and your spouse on civil terms? Are there legal issues, such as a restraining order, that would prohibit the two of you from having contact? Are you able to discuss complex issues without resorting to accusations, name-calling, and other types of aggressive behavior? It's important to answer these questions honestly, because a mediator cannot serves as an advocate or referee. A mediator's main purpose is to facilitate discussion by clarifying the laws, and suggest alternative arrangements that may help you reach an agreement. However, he or she cannot offer legal advice, nor are they there to settle fights over unresolved emotional conflicts. Most important, whatever you two discuss has to be finalized in writing, so if there are any disagreements on important issues like custody, alimony or child support, then mediation is probably not for you. You could, of course, work through these issues with an attorney prior to attending mediation.
In addition to the need for a written agreement, there are various legal issues that you should consider before entering into mediation. For example, mediation is not appropriate for divorces involving highly sensitive issues, such as mental or physical abuse. It's also not recommended for resolving complicated financial issues, since mediation has no discovery process, which is the only way you would be able subpoena records and other information from your spouse. The family law attorneys of Villani & DeLuca, P.C. would be happy to advise you on these issues, along with other non-litigation alternatives for settling your divorce.