914.946.0848  .  contact  .  map & directions  .  subscribe  .  LinkedInFacebookTwitterGoogle+

The Difference Between a Mediated and a Litigated Agreement

March 1, 2016  | 
The Difference Between a Mediated and a Litigated Agreement

{3:48 minutes to read} When comparing mediated and litigated agreements, the first thought that comes to mind is that a mediated agreement would have terms that are balanced, would be more creative and would more accurately reflect exactly what the parties believe is best for their families.

The Language
Another important difference is in the language itself. Without considering the actual terms, one can see a difference in the terminology used in an agreement drafted after a mediation versus the terminology used in an agreement drafted after an adversarial process:

  • The tone of an adversarial agreement is, well, adversarial - - legalistic, stiff, impersonal, cold;
  • Parties’ names are not used in a litigated agreement; instead they are referred to as husband/wife, plaintiff/defendant;
  • The terms custody and visitation are used in a litigated agreement as opposed to parenting plan and access with the children when mediating.

It’s more than the use of certain words, though. An agreement that is drafted by an attorney who is working solely for the benefit of her client, ends up being just that. There are phrases that are used that may not seem important to you as a client, but the other party’s attorney certainly will recognize them and object to them. At the same time, that attorney will be including certain phrases and terms that benefit only his client.

The Devil is in the Details
Another difference is that an adversarial agreement assumes that there will be problems between the couple, no matter who the couple is or how they relate to each other. So, a non-mediated agreement typically includes the minutest of details for an issue:

  • Defining the number of minutes that constitute acceptable delays when returning children;
  • A mandate to provide the other parent with 5 days notice if you want additional time with a child.

A mediated agreement will provide additional details when the couple needs them, but is not burdened with such extraneous language if it’s not necessary.

Since I no longer litigate, I only see these differences when a mediation client takes the agreement to be reviewed by an attorney who mostly litigates. I have had clients who were completely capable of making agreements between them and in fact, had been living separately and without discord for a period of time. Yet one of their attorneys added over half a page of detailed language in quite convoluted legalese, which effectively said that the parties may agree to additional access with the children. If the parties agreed to the additional access time, was this burdensome language necessary?

This is not to imply that a mediated agreement is less “legal.” A mediated agreement is as thorough, complete and enforceable as an agreement derived from an adversarial proceeding. More importantly, it is three more things: 1) It is based upon terms that both parties have determined for themselves and agreed upon;, 2) it is only as detailed as the particular clients need it to be; and 3) the language is personal to them and clearly understood.


Comments from Social Media

Well said, Clare! That is a good reason for the clients to use mediation friendly review/consulting attorneys even if those attorneys are also litigators.

Lauren Morrissey

Clare Piro Attorney and Mediator

Attorney & Mediator
500 Mamaroneck Avenue | Suite 320
Harrison, NY 10528
Tel: 914.946.0848

Email »

Comments
Search
Topics
Mediation (95) | Divorce (88) | Divorce Mediation (19) | Mediator (13) | Child Support (10) | Conflict (9) | Separation (8) | Litigation (8) | Separation Agreement (8) | Communication (7) | Co-Parenting (7) | Collaborative Divorce (6) | Attorney (6) | Parenting (6) | Clare A. Piro (6) | Consultation (6) | Clare A. Piro Mediation (6) | Parenting Plan (5) | Children (5) | CSSA (4) | Finances (4) | Expenses (4) | Equitable Distribution (4) | Family (4) | Settlement (4) | Marital Assets (4) | Divorce Mediator (3) | Emotions (3) | Clare Piro (3) | Agreement (3) | Financial Professional (3) | Divorce Finances (3) | Divorce And Children (3) | Child Consultant (3) | Assets (3) | Separate Property (3) | Divorce Coach (3) | Clients (3) | Child Support Standards Act (3) | Mediation Myths (3) | Child Inclusive Mediation (3) | College Expenses (2) | Anxiety (2) | Mediate (2) | Truth (2) | Divorce Agreement (2) | CDFA (2) | Law Professionals (2) | Relationships (2) | Compromise (2) | New York Child Support Statute (2) | Blended Families (2) | Budget (2) | Equal Parenting Plan (2) | Listening (2) | Calculating Support (2) | Spouse (2) | Bitterness (2) | Informed Decisions (2) | Child Support Standards Act (CSSA) (2) | Custody (2) | Legislation (2) | Consulting Attorney (2) | Certified Divorce Financial Analyst (CDFA) (2) | Step-Mother (2) | Step-Father (2) | Step-Children (2) | Budgets (2) | Settlement Agreements (2) | Conflict During Mediation (2) | Mediation Versus Litigation (2) | Mediation Benefits (2) | Couples (2) | Collaborative Practice (2) | Marital Property (2) | Moving Forward (2) | Anger (2) | Marital Home (2) | Post-Divorce Income (2) | Pandemic (2) | Seperation (2) | Unrequited Love (2) | Apology (2) | Power Of Regret (1) | Guilt (1) | 50/50 Parenting (1) | Separating (1) | Holiday Season (1) | Parental Holiday Sharing (1) | Cultural Holidays (1) | Religious Holidays (1) | Parenting Schedules (1) | Mediating Onine (1) | Mediating Virtually (1) | Couples Counseling (1) | Technical Difficulties (1) | Agreement To Mediate (1) | Caucus (1) | Co-parenting (1) | Coronavirus (1) | Understood (1) | Marital Concerns (1) | But (1) | Fiancé (1) | Prenuptial Agreement (Prenup) (1) | Collaborative Process (1) | Attitudes Toward Prenups (1) | Asset Distribution (1) | Prenuptial Agreement (1) | Equitable Distribution Statute (1) | Prenup (1) | Court Vs Mediation (1) | Needs Vs Wants (1) | Negotiation (1) | Entitlement (1) | Court Process (1) | Financial Documents (1) | Apologizing (1) | Property Distribution (1) | Heard (1) | Court Order (1) | Unhappy Relationship (1) | Lack Of Communication (1) | Remain Healthy (1) | Maggie O’Connor (1) | Global Pandemic (1) | COVID19 (1) | Matrimonial Cases (1) | Meditate (1) | Custody Disputes (1) | Multiple Assets (1) | FinancialPortfolio (1) | Complicated Finances (1) | Mediation Misconceptions (1) | Social Distancing (1) | Maintaining Calm (1) | Children And Divorce (1) | Expectations (1) | On-Duty Parent Responsibilities (1) | Opposites (1) | Pension Plans (1) | Retirement (1) | Pensions (1) | Retirement Plans (1) | Legal Rights (1) | Honest Conversation (1) | Family Occasions (1) | CoParenting (1) | DecisionMaking (1) | Joint Decisions (1) | Empowerment (1) | Advocacy (1) | Separate Property Credit (1) | Personality (1) | Perspective (1) | Lack Of Focus (1) | Pension (1) | Support Add-ons (1) | Bonuses (1) | Commissions (1) | Income Level (1) | Actuarial Company (1) | Qualified Domestic Relations Order (QDRO) (1) | Alternative Dispute Resolution (1) | Coparenting (1) | ADR (1) | Presumptive ADR Program (1) | New York Family Court (1) | Family Court Presumptive ADR Program (1) | Family Court (1) | Parenting Styles (1) | COVID 19 (1) | Thrive (1) | Transition Day (1) | Custody Determination (1) | Older Adults (1) | Eldercare (1) | Elder Mediation (1) | Older Parents (1) | Domestic Violence (1) | Primary Caretaker (1) | Child's Best Interests (1) | Anxious Thoughts (1) | NYs Child Support Guidelines (CSSA) (1) | Child Support Payment (1) | Non-Residential Parent (1) | A Neutral (1) | An Advocate (1) | 50/50 Parenting Plan (1) | Tough Decisions (1) | Pathological Liar (1) | Depression (1) | Communicating (1) | Languish (1) | Waiving Spousal Support (1) | Postnuptial Agreements (1) | New York’s Child Support And Maintenance (1) | Facial Expression (1) | Tone Of Voice (1) | Family Mediations (1) | Family Law Software (1) | Mediating Emails (1) | Child Focused Mediation (1) | New Year’s Resolutions (1) | Intention (1) | Feelings (1) | Joseph Goldstein (1) | Financial Information (1) | Perfection (1) | Mental Health Professional (1) | Acknowledgement (1) | Effects On Family (1) | Living Together (1) | Living Apart (1) | Baby Boomers (1) | Grandparents (1) | Divorce Law (1) | Abundance (1) | Scarcity (1) | Resolution (1) | Marriage (1) | Summer (1) | Kids (1) | School Year (1) | Power (1) | Conflicy (1) | Adopt Shelter Dogs (1) | Parents (1) | Married Couples (1) | Hurricane Harvey (1) | Compassion (1) | Nesting (1) | College (1) | Contribution (1) | Disclosure (1) | Fall (1) | Moving On (1) | Responsibility (1) | Unemployment (1) | Seperation Agreement (1) | Payments (1) | Extremes (1) | Older Dogs (1) | Dogs (1) | Transmutation (1) | Holiday Blues (1) | Equity (1) | House (1) | Finding Love After Divorce (1) | Post-Divorce Dating (1) | Alone At The Holidays (1) | Holidays Post-Divorce (1) | Scared Of Divorce (1) | Specialist (1) | Fear Of Divorce (1) | Halloween (1) | Moving On After Divorce (1) | Joint Physical Custody (1) | Parenting Post-Divorce (1) | Parenting Plans (1) | Mental Health (1) | Relocation (1) | Agreements (1) | Mindfulness (1) | New York (1) | Self-talk (1) | Advice (1) | Blame (1) | 2015 (1) | Year In Review (1) | Equality (1) | Change (1) | Balance (1) | Control (1) | New York State (1) | Self Determination (1) | Self-determination (1) | Difficult Clients (1) | Commingling (1) | Maritial Property (1) | Lawyer (1) | Significant Other (1) | Ex-Spouse (1) | Accepting Responsibility (1) | Taking Responsibility (1) | Remarriage After Divorce (1) | Family Enrichment (1) | Attitudes (1) | AttorneyPresence (1) | Emotional Attachment (1) | FamilyMediation (1) | MediationSession (1) | LawyerDivorceMediation (1) | Matrimonial Dispute (1) | Holiday Preparations (1) | Work Stress (1) | Dividing House Asset (1) | Divorce Assets (1) | Spouses (1) | Frame Of Mind (1) | Fear Of Separation (1) | PostNup (1) | Post Nuptial (1) | Time To Process (1) | Patience (1) | Marriage Counseling (1) | Reluctant Spouse (1) | Refinance (1) | Telling Your Spouse (1) | Seller (1) | Buyer (1) | Cash Flow (1) | Interest Payments (1) | Equity Loan (1) | Separation Agreements (1) | Dishonest (1) | Maritial Assets (1) | Permanent Agreement (1) | Settle Agreement (1) | Joint Account (1) | Financial Costs (1) | Lack Of Trust (1) | Accusations Of Delay (1) | Tentative Agreements (1) | Temporary Agreement (1) | Life Insurance (1) | Installment Agreements (1) | Joint Legal Custody (1) | Joint Decision Making (1) | Negative Communication (1) | Divorce Papers (1) | Retirement Account (1) | Settlement Term (1) | Spousal Support (1) | Little White Lies (1) | Bankruptcy (1) | Lies (1) | Public Trust (1) | Personal Relationships (1) | Settlement Agreement (1) | Married (1) | Affair (1) | Wife (1) | Beneficiary (1) | Husband (1) | Financial Situation (1) | Custodial Parent (1) | Intervention (1) | Dreaming (1) | Therapy (1) | Pro-Rata (1) |
Connect
Close Announcement

Online Mediation Available

In response to COVID-19 I am providing family and divorce mediation services online. Click to learn more.