The pitfalls of mandatory pre-litigation mediation provisions

Posted Tuesday, May 17th, 2022 by Gregory Forman
Filed under Litigation Strategy, Mediation/Alternative Dispute Resolution, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

I increasingly see provisions in custody or support agreements that require mandatory mediation before either party can file a mediation case. Sometimes these agreements are silent on the mediator. Sometimes they have required mediators, and often these required mediators are the most popular ones. Always they are a well meaning but counterproductive roadblock to actual dispute resolution.

One assumes the intent of these provisions is to give the parties the opportunity to resolve their disputes through less adversarial means before resorting to contested litigation. However nothing prevents folks from attempting mediation prior to resorting to litigation. What these mandatory provisions actually do is enable to party who is happy with the status quo to delay litigation, and a change in the status quo, for months. When the provision is silent on the mediator, the party who likes the status quo can simply reject proposed mediators who can mediate promptly. When a popular mediator is listed in the agreement, we are typically unable to schedule mediation for months. I have seen a party employ a mandatory mediation provision to actually delay mediation for 6 ½ months. Rarely are these mediations scheduled within 60 days.

Further, a mandatory pre-litigation mediation is rarely successful. Without discovery there are often too many unresolved factual disputes to create a resolution that both parties find preferable to instigating or defending litigation. Further, in custody and visitation disputes, the absence of a guardian’s investigation similarly hinders resolution. In all circumstances, the party favoring the status quo has little incentive to voluntarily exchange the information that might enable settlement. Mandatory pre-litigation mediation provisions reward obstinacy and unduly hinder the party who seeks modification. What is typically justified as a cost saving measure simply adds delay and costs to the process.

Mediation is merely a dispute resolution tool. It neither prevents nor reduces actual disputes. Perhaps clever attorneys include these provisions in their agreements because they believe the other party will seek modification and these provisions hinder that party’s ability to modify. More likely, well-meaning attorneys include them because they wish to be perceived of as non-litigious problem solvers. Unlike most of my peer, I think being litigious can be useful when the other party is unreasonable or obstinate.

If we lived in a kumbaya world, in which everyone acted in good faith and co-parents simply tried to do what was in the best interests of their children, mandatory pre-litigation mediation provisions might make sense. In that world, there is probably little need for family law attorneys. That is not the world we live in.

Whether representing the party seeking modification or the party happy with the status quo, I’ve yet to settle a matter through mandatory pre-litigation mediation. When one believes the opposing party to be a vexatious litigant, it might make sense to include this provision in a custody or support agreement. Otherwise, they simply allow the party who is satisfied with the status quo to keep that status quo in place for months and rewards obstinacy.

2 thoughts on The pitfalls of mandatory pre-litigation mediation provisions

  1. Jill HaLevi says:

    Food for thought, Greg. Though I almost always include pre litigation mandatory mediation provisions in my MSAs, I see the validity of many of your points. That said, I have seen these provisions work as intended (to avoid litigation) many times. I think it is highly dependent on the parties involved.

  2. I tend to agree. It’s like the clause requiring parties to share the children’s birthdays – if it will work, they don’t need it in the Agreement.

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