Settlement of family conflicts necessitates dialogue, negotiation, and consensus.
Resolving disputes outside of the adversarial litigation system requires the commitment of time, energy, creativity, and resources to arrive at a lasting and workable accord. Face-to-face interaction—with the assistance of lawyers trained to work as a team; or a mediator who is impartial and open-minded—is at the core of being able to reach terms that solve short- and long-term issues. Whenever all the discussions are concluded and a “deal” is achieved at the table, the phase of document-drafting begins. Sometimes that results in a simple “memorandum of understanding” which is implemented voluntarily and informally. Yet most often the outcome of collaboration or mediation is a binding, comprehensive written and signed contract between the family members known variously as a Separation Agreement, Marital Settlement Agreement, or Opting-Out Agreement.
Alternative dispute resolution (“ADR”) options such as Collaborative Law and divorce mediation provide spouses with real-time interaction to avoid much of the “behind the scenes” posturing and positioning inherent in conventional negotiation between adversarial litigators. Skilled Collaborative professionals and experienced mediators are able to provide a setting where constructive conversation widens the pathway to solutions that are client-centered and durable for life ahead. In most instances, the meeting of the minds leads to a lengthy document that forms the binding terms to be applied and followed by the couple.
Once the lawyers or the mediator are done with their work, both parties must of course live up to their written commitments. It is vital that draftsmanship of an Agreement be clear, concise, and comprehensive all at the same time. It is not unusual for Separation Agreements to span 20 pages or even longer depending on the complexity of the clients’ circumstances and the scope of the matters being resolved. Careful, accurate and thorough drafting will certainly consume several if not many hours of putting onto paper the end product of a successful settlement.
Unfortunately it is frequently commonplace for couples to shortchange the execution of their Agreements by failing to ask sufficient questions of the professional(s) who compile the document and/or by just relying on the assumption that the language in the instrument is “standard” or “required“. With some exceptions, almost EVERYTHING in a settlement contract can be tailor-made to the needs and interests of the family members involved and may be edited to the suitability and understanding of the spouses who sign the Agreement. Never hesitate to ask questions about the meaning and purpose of ALL of the clauses in a document that is supposed to embody the collective understandings of the parties. For when the lawyers, mediator, or other allied professionals are “out of your lives”, the enforceable provisions of the written Agreement survive and endure—perhaps even in perpetuity.