Negotiating a marital settlement, parenting plan or maintenance (alimony) agreement with divorcing couples takes hours of bargaining in good faith. The agreements are entered into after a couple’s full review of their financial assets and obligations, discussions of work schedules, travel requirements, housing accommodations for the children, and many other considerations. It is an emotional time for the couple, and as a mediator, it is my job to promote fairness and fair process throughout the mediation, which is often conducted over several weeks or months, depending on the complexity of the case.
When agreement is reached, I assist the couple by writing their terms and conditions of the agreement into a document known as a Memorandum of Understanding or ‘MOU.’ This role of a non-attorney mediator acting as scribe to the agreements is allowed in Colorado; it may not be so in all states. The MOU is written in a thorough manner in order to minimize challenges that might arise in the future. The parties typically sign the agreement without reservation, and I notarize their signatures. They usually feel good about the agreement that they have had a primary role in creating. The document can either be filed in court or taken to an attorney for a legal review prior to filing, if the couple attends mediation pro se (representing oneself without an attorney).
Notarization is required by the court on certain forms and the final agreement to ensure that the signor is indeed who they are representing themselves to be. The notary views a picture ID to validate the identity of the signor and keeps a journal of the signatures that have been witnessed. It is an important function that I am proud to offer my clients as a small component of comprehensive and excellent service.
When a couple fails to sign and notarize the agreement at the conclusion of the mediation, a good agreement and hours of work can be undermined, and the investment in time, emotional energy, and mediation fees can be lost. Discussions about the agreement with friends may yield casual comments: “you could have done better” or “Mary got more in maintenance or child support.” These negative messages are often unhelpful and may be based not on reality, but on the natural tendency to rally in support of a friend who is struggling.
The concern of signing and notarizing a document, thereby possibly forfeiting a potential legal right, is understandable. That is why I encourage including a legal review provision in the Memorandum regardless of whether the couple intends to exercise the provision. A simple legal review provision might include the following sample language that I had a Colorado licensed attorney prepare for my client’s purposes:
The parties were not both represented by attorneys during Mediation. The parties agree that the signed agreement is subject to their respective attorneys' review to be completed within # business days of the signing of the document; that only those provisions that are legally inadvisable shall be renegotiated in mediation with the same mediator within # days; that such objections shall be in written form by the objecting party's attorney and sent to the other party with proof of delivery or proof of attempted delivery, and that objections to the signed agreement by one of the parties shall not bar enforcement of that agreement unless those objections are fully supported by the written and signed statement of their attorney.
Good business practices protect everyone. It is better to have no agreement than a bad or incomplete agreement. Working with a professional mediator who has experience, knowledge, and excellent negotiation skills can greatly reduce the cost of divorce, improve the quality of the agreement, and the long-term satisfaction and respect between the members of the restructured family.