Case Law Development: Enforceability of Agreements Drafted During Mediation and Admissibility of Mediator Testimony

In a case that family court mediators in many jurisdictions might find surprising, the Tennessee Court of Appeals affirmed a trial court's enforcement of a handwritten agreement prepared during divorce mediation which addressed property division and spousal support issues but did not address child custody and support.  Further, the appellate court found no prejudicial error in allowing the mediator to testify regarding Wife's capacity to participate in the mediation.

McMahan v. McMahan, 2005 Tenn. App. LEXIS 756 (December 5, 2005)
Opinion on the web at http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/054/McMahanjdOPN.pdf (last visited December 11, 2005 bgf)

After a seven-hour mediation in their divorce, Husband and Wife signed a five-page, handwritten mediation agreement containing 32 paragraphs pertaining to property division and spousal support. Before the parties and their counsel left the attorney's office, each page of the document was either signed or initialed by both Husband and Wife and by the mediator. Both parties' attorneys were present during the mediation.  The handwritten agreement did not address child custody or support issues and included provisions regarding a marital dissolution agreement that was yet to be executed. 

Husband's attorney then drafted the formal divorce agreement, which Wife refused to sign, arguing that the mediation agreement was not enforceable because of duress, lack of capacity, and that it was not intended to be an enforceable agreement.  Husband then moved to enforce the agreement.  The trial court held a hearing at which the mediator testified that Wife's mental condition did not appear impaired during the mediation. The court then enforced the agreement.

The Tennessee Court of Appeals affirmed the trial court judgment.  Wife argued that a mediated agreement may not form the basis for a consent judgment when one of the parties has withdrawn their consent.  The court agreed with that general principal, but held that the trial court "could, as it did, enforce a contract between the parties."  The court further rejected Wife's argument that the written agreement was not a final binding contract because, as the terms in the handwritten document indicated, the parties intended a more formalized agreement would be drafted and executed. The appellate court agreed that "There is no doubt that the parties anticipated that a more formal document would be drafted and signed." but concluded that "This, however, does not mean that the validity of their agreement as to the 32 items was contingent upon this being done."  Moreover, the court concluded that " The omission of child custody and maintenance provisions from the mediation agreement does not prove that the parties ddid not intend the mediation agreement to be a final resolution with respect to the 32 provisions included in the signed document.

Finally, the court found no reversible error in the decision to admit the mediator's testimony.  Tennessee's rules regarding mediation provide that court certified mediators shall preserve confidentiality and that conduct or statements made during mediation are inadmissible to prove liablity.  However, here, the court found "The mediator in this case was careful not to testify to statements or assertive conduct made by Wife. She did not disclose confidential information or attempt to prove liability via conduct or statements made in the course of the mediation.