Family law mediation or divorce mediation is a low-conflict process that you can use to help you reach an amicable agreement without a lengthy court battle.
In divorces, emotions can quickly spiral out of control, complicating matters and causing unnecessary problems. Unlike traditional divorce litigation, the primary goal of mediation is to help minimize hostility between the couple and reach a mutually satisfactory resolution. That is why divorce mediation or mediation for child custody, alimony, division of assets, etc., can be instrumental in helping you avoid the conflict, time, and expense of litigation.
Parties participate in mediation for many reasons. Sometimes, the mediation is court-ordered. Sometimes, parties believe mediation will save them time and money. Whether the mediation is mandatory or voluntary, the parties coming to the mediator’s table must want to settle their differences for this process to be successful.
After the conclusion of negotiations, if the mediation is successful and the parties reach an agreement, the mediator or the attorney for one of the parties, outlines the terms of the agreement, either verbally or in writing. Either way, the verbal communication of the terms reached in the mediator’s office or the written outline should contain a basic understanding of the parties’ agreement, which is to be incorporated into a settlement agreement or other form of the consent order.
But what if one of the parties changes their mind and opposing counsel threatens to file a motion for a Harrington hearing? Is there a binding agreement or not?
A case law in New Jersey dictates how post-mediation issues are to be resolved. For example, the name for the Harrington hearing comes from the 1955 case Harrington v. Harrington in which the court enforced a purported settlement reached during a court-ordered mediation session after a plenary hearing. Since then the law has evolved, but it is still in your best interest to take the terms of your settlement agreement seriously or you may end up in court to see how that case law applies to your situation.
That is why, always confirm your understanding of an agreement, as well as your adversary’s, before leaving mediation. If the agreement requires further consideration, speak up. If some contingencies or conditions must be met, take the time to address the unresolved issues. Set a follow-up date by which the parties may accept or reject the agreement or set a follow-up mediation date to resolve any other issues.
