Buyer’s Remorse

So imagine this scenario. You’ve spent all day in mediation with the other side. You have been going back and forth all day trying to reach an agreement that will resolve all the issues of your case. It is past 5:00pm and the cleaning crew is the newest spectator to this battle. You’re tired and ready to be done. Just as you are about to give up hope, an agreement is reached. After several handshakes, everyone goes home exhausted, but pleased that the case is resolved. So you’re done, right?

Maybe not.   Imagine this second scenario. One of the parties to the grueling mediation described above goes home and explains the settlement to their best friend. That friend tells them they gave up too much or did not fight hard enough for one thing or another. (Friends make bad legal consultants…trust me) As a result, that party decides after a sleepless night that they no longer agree to the deal that was reached in mediation and it is back to the drawing board (or courtroom for trial).

This may sound like an unlikely scenario, but I promise you it happens all the time. Settlements are tough and they always involve both sides giving up more than they want to give up. There is a saying in family law that if an agreement is reached and both sides think they got screwed, then it is a good settlement. We don’t say that to be flip. It’s just that in a divorce case the pie that is being divided up is only so big; no one person can get everything they want.

So, how do you protect yourself? The answer is simple. California Code of Civil Procedure §664.6. Section 664.6 reads in part:

“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence              of the court or orally before the court, for settlement of the case, or part thereof, the court,    upon motion, may enter judgment pursuant to the terms of the settlement.” (Emphasis added)

In layman’s terms (that is why you are here after all) it means that if an agreement is reached, and that agreement is reduced to a document that is signed by all parties and their attorneys or it is recited before a Judge on the record (meaning in a courtroom with a court reporter) then that agreement is enforceable against the parties and can be made a Judgment.

The written agreement may not contain all of the provisions you will include in the final agreement, but it should contain all of the material agreements that were reached. It also should always include a clause that states that the agreement is being entered freely and voluntarily and that by signing the document the parties agree it can be enforced pursuant to Section 664.6. The latter point is not when a motion is filed to enter the agreement as a Judgment.

When reading the first scenario it seems like such an easy step to draft a summary of the agreements reached at mediation and have everyone sign them. The problem is that by the time an agreement is reached everyone is exhausted and ready to go home. No matter how tired you are, you should always draft the agreement and get it signed. It will save everyone a great deal of time and money in the future should there be any problems.

Mediation can be a stressful and difficult process to get through. With that said, a successful mediation will not only save you money, but will allow you to take an active role in how your case is decided. When deciding on an attorney for mediation, it is important to choose an attorney who is knowledgeable and qualified to present your position and negotiate on your behalf.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding mediation. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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