Fri 09 Aug 2019
How does mediation lead to a legally enforceable agreement?
Posted by Guest.Author
One of the questions we most often receive about family mediation is whether, at the end of mediation, there will be an enforceable, legally binding agreement. As seems to be the case with so many of life’s important questions, the answer to this is not a simple “yes” or “no”.
In this post (originally published in November 2011), lawyer Erin Shaw tackles this multi-layered question, along with some of the other frequently asked questions about agreements and Memoranda of Understanding (MOU). The information Erin provides here is based on the laws of British Columbia. In other places, different rules and practices may apply.
Will I have an enforceable, legally binding agreement at the end of the mediation?
At the end of a mediation, you and the other person may have come to agreement about how you will resolve some or all of the issues you’ve been discussing. This will usually be recorded in a document drafted by the mediator. While that document might be a legally binding agreement, often it is a non-binding Memorandum of Understanding (it could have another name).
If we’ve agreed, why wouldn’t I have a legally binding agreement?
There are a few reasons why you may not walk away from the mediation with a legally binding agreement, even though you have come to an agreement.
First, in British Columbia only lawyers can draft legally binding agreements for a fee. So, if your mediator is a lawyer, he or she will be able to draft a legally binding agreement, although not all lawyer-mediators do that for some of the reasons set out below. In British Columbia, government employees called Family Justice Counsellors can also draft agreements in some cases. British Columbians looking for help from a Family Justice Counsellor should talk to them about what services they can provide.
Second, many mediators (including lawyer-mediators) strongly encourage the parties to seek independent legal advice about the agreement before signing it. See the earlier posting about why you should see a lawyer if you are mediating.
Finally, while you may have come to an agreement about the major issues in mediation, the resulting document may be more like a framework on which the more detailed, legally binding agreement will be built.
What’s the difference between a non-binding MOU and a legally binding agreement?
A non-binding MOU describes the plan that you have agreed to in mediation, but a court will not enforce it. A non-binding MOU is useful because it allows you to consider how the plan developed in the mediation will work and gives you an opportunity to get legal advice before signing a legally binding agreement or getting a court order. If you decide you do not agree with something in the MOU, you are not bound to it. An MOU is also “without prejudice”, which means that it cannot be used as evidence of what you might or might not have agreed on or what was discussed in mediation. Mediators who are not lawyers will usually prepare a non-binding MOU. Sometimes Family Justice Counsellors and lawyers choose to draft non-binding MOUs because legally binding agreements can only be changed by a court order or if the other party agrees to the change. The courts will enforce the agreement and it can be used as evidence in court of what you agreed to in the mediation (otherwise what goes on in mediation is generally confidential).
How can I tell if what I have is an MOU or a legally binding agreement?
The difference between an MOU and a legally binding agreement flows from the intention of you and your former spouse or partner. If you intend the agreement to be binding, evidence of that intention must appear in the document. A legally binding agreement, often called a separation agreement, may state that it is intended to be binding and it must be signed by both you and your former spouse or partner and by a witness. If the intention is that the document is not binding, that intention should be evident on the face of the document. For example, an MOU should state clearly it is not binding and it should not be signed by the two of you. Sometimes it will also have a “Draft” stamp on it.
How can we turn an MOU into a legally binding separation agreement?
Once you have had independent legal advice and decide you are happy with what is in the MOU, a lawyer – or, in some cases, a Family Justice Counsellor – can draft a separation agreement based on the terms of your MOU. For more information, see:
- Clicklaw's page on Family Agreements, which has information on separation agreements
- Self-Counsel Press’ guide called “Separation Agreement”
What if we want a court order reflecting our MOU or legally binding separation agreement?
Filing with the court: You can file an agreement in the Provincial Court or the Supreme Court and the court will enforce certain terms of the agreement (but not those relating to property) as if they were orders of the court. You can visit Legal Services Society’s Family Law website to get information on:
Consent order: A consent order is an order of the court that the parties agree to. You can apply to the Supreme Court or the Provincial Court for a consent order. Usually, you are not required to attend a court hearing to get a consent order but can just file documents with the court registry. Sometimes the judge wants to hear from the parties in person. If that happens, the court registry notifies them. Legal Services Society’s Family website can give you information on:
- how to apply for a consent order in Provincial Court
- how to apply for a consent order in Supreme Court
Undefended or Joint Divorce: If you are married and want to get a divorce, you will need to complete and file other documents in order to obtain a divorce. Only the Supreme Court can make divorce orders. When people apply for a joint or undefended divorce, they can ask the court to make the orders that reflect the agreements they reached at mediation. Legal Services Society’s Family website has detailed self-help guides for doing your own undefended (sole or joint) divorce.
This is complicated. I still don't get it!
This is a confusing area of law. If it's still not clear, ask a lawyer, mediator or Family Justice Counsellor to walk you through the differences between - and the pros and cons of - legally binding agreements and non-binding MOUs.
About the Author
Erin Shaw is Victoria based lawyer with 30 years of experience in the private, public and non-profit sectors. She has a longstanding interest and many years of experience in working to make the justice system more accessible and user friendly.
