We know we may challenging orthodoxy with some of the comments below, but there are many conventional settlement clauses that are meant to keep the peace but that almost guarantee future conflict. We call these the “weaponized” provisions, the clauses in a court order or separation agreement that seem to only create conflict. We avoid these as much as possible in negotiating a settlement. The trouble is, not many lawyers (or judges) seem to agree. But hear us out.
Mandatory Mediation Clauses
The family-law industry, including judges and lawyers, are persistently emphasizing the benefits of using mediation to resolve your differences. And mediation is, generally speaking, a very good thing. The cost-savings can be enormous. The emphasis on a constructive, solution-focused, child-focused approach helps avoid the worst of family law disputes. Parents who resolve things in mediation are generally more inclined to follow the settlement and to work more constructively in the future. And they are more inclined to return to mediation if future disputes arise.
BUT, it must also be said that mediation requires both parties to have some basic degree of reasonableness and basic willingness to work together to resolve things. Where a party’s position is wholly unreasonable, where you’re on Year Three and counting of court proceedings, where the other party has gone through too many lawyers and is now self-represented, mediation will just be used as a stall tactic and to run up your legal bills (your ex no longer has legal bills).
Similarly, many settlements contain a mandatory-mediation clause that prohibit future court proceedings until mediation has been exhausted. These are usually used as license to be unreasonable and to delay the inevitable accountability. “The child now lives with you full-time and you want child support and assistance with collegetuition? Great, but I won’t pay a dime until mediation is exhausted as required by our settlement from 10 years ago.” That response is typical with mandatory-mediation clauses. The unreasonable party only changes their tune once they are in front of a judge who seems to have a special ability to put fear into parties to behave reasonably. Everyone knows this, so parties who are in the wrong jump on mandatory mediation to delay the inevitable.
Only if parties have a basic and sincere willingness to resolve their differences, only if they choose mediation, will mediation be effective. Imposed mediation simply does not work.
The Right of First Refusal Clause
We see these all the time. And they seem highly reasonable at first glance: If you are not available to look after our child for more than four hours (or 12 hours, or overnight, or for whatever period of time the clause states), rather than place the child in the hands of a stranger for care, you must give me, the other parent, the opportunity to look after the child (or refuse to look after the child). This seems reasonable – it makes sense and hopefully parents would naturally do this without it being required. But, these clauses tend to get ignored, UNTIL an unrelated conflict breaks out. Then, placing the child in a grandparent’s care, which was never contested before, suddenly becomes a life-and-death concern for the child’s care and well-being. Or, once you have a new partner: never mind that that partner has been meaningfully involved with your child for a number of years, never mind that you even have a new child with that partner, your ex-partner now has a lever to inquire on your life, your routine and schedule and your decisions on your child and can prohibit your new partner from having parenting time with your child in your absence.
A Right-of-First-Refusal clause is almost universally used for control and disruption and used arbitrarily. We never see these used peacefully and amicably. Separated parents that are, in fact, child-focused and regard each other with a minimum of respect will never need such a clause. An ex-partner who is neither of these will only see an opportunity for conflict.
The 30-Page Parenting Agreement
We understand, we get it: two parents with endless conflict who are equally good (or bad) parents in their own right, for these parents, the obvious solution for lawyers and judges is a detailed court order (or separation agreement) that lays out all aspects of parenting. The lengthy, plug-and-play agreement covers all obvious circumstances. Simply read the appropriate clause, follow it faithfully and everything will run smoothly, or at least, functionally. We have negotiated these ourselves many times and we could never fault a court for making such detailed provisions.
Unfortunately, the longer the settlement, the more clauses there are to be ignored. It is exhausting to follow 20-pages or more of parenting provisions with an ex-partner that you do not like. And once each party starts to drift from the original order (or agreement), they eventually cherry-pick which clauses actually apply, and which ones are to be ignored. It’s only a matter of time before a clause is weaponized, to invoke for control or disruption, notwithstanding the clause was ignored before and the parties made alternate arrangements.
Is there a Better Way?
Is there a better way? Perhaps. It is always easy to attack prior settlements in hindsight and family law is never easy. And compromise is essential to resolving family-law disputes. Ultimately, though, our view is to not rush too quickly into a settlement that sets clients up for failure later. Look at the circumstances carefully in each matter and consider carefully what proposed clauses will get ignored on one hand, or will be weaponized on the other.
