Is Mediation Enforceable if One Spouse Backs Out?

Imagine this scenario. You and your spouse agree to mediation as a way to save time and expense with your divorce. Over the course of a few weeks, you attend your sessions and work with the mediator to reach consensus on alimony, child custody, child support, and the division of your property. The mediator drafts your agreement and presents each of you with a copy — which your spouse then refuses to sign! He or she asks for last-minute revisions or the deal is off. What do you do? What can you do?

Until the signed agreement is presented to the court for approval, it’s not an enforceable contract. So, even if you were to go to the judge, show the agreement, and have the mediator testify that your spouse had agreed to the terms, it would get you exactly nowhere.

What you need to do is take a breath and try to understand why your spouse seems to be pulling the plug on your divorce mediation. There are a few possibilities:

• Emotional blackmail — This is a hardball negotiating tactic. Your spouse knows you’re invested in getting the deal done, so this is a perfect opportunity to upset the apple cart and gain a few last-minute concessions so it will all be over. Under these circumstances, it could be tempting to cave on some issues you fought for, because they suddenly don’t feel important enough to jeopardize the agreement. But that’s just what your spouse is hoping for! Unless you stand firm, you’ll live with a deal you’ll regret.
• True buyer’s remorse — Your spouse may have been too passive through the mediation process and not asserted his or her preference for certain terms. Now, upon reflection, your spouse thinks the deal is one-sided and wants to walk some terms back. This could be a sign that your mediator moved too quickly and didn’t work hard enough to elicit thoughts from your spouse. But these things happen in negotiations, so now you have to decide whether you’re willing to go back to the drawing board.
• Unresolved emotional issues — In this case, it’s really not the agreement at all, but the finality that comes with signing. Your spouse still isn’t ready to let go of you, the marriage, or resentment over the marriage ending. He or she may just need a weekend of fresh air to get over it, so it might be prudent to allow a little space and have your attorney follow up in a few days.

These situations highlight the importance of hiring a knowledgeable and experienced mediator to manage your divorce. At our firm, we are focused on providing you with the best possible mediation services to avoid any last-minute disruptions.

If you are planning to file for divorce, Solutions Divorce Mediation, Inc. can help you and your spouse reach a cost-effective marital settlement agreement. Call us at 1.631.683.8172 or contact our Long Island office online.