Boilerplate Divorce Agreements/Martin Rosenfeld, JD

Posted on May 29, 2017

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Boilerplate agreements are comprised of typical clauses that simply require an occasional fill-in or brief reference. A mediation client recently showed me such an agreement that a family lawyer had prepared for her. Once she agreed to its content, it would be shared with opposing counsel. Once signed by both parties, the divorce matter would be raedied for introduction in the divorce proceeding.

As a mediator, I do not have boilerplate agreements. I have two clients who engage in discussion in the search for Win-Win. Any agreement that they will ultimately sign will be the direct result of their discussions and negotiations.

What problems do boilerplate agreements introduce into the realm of dispute resolution? I will outline a few that concern me:

*A boilerplate clause may not be germane at all to the matter at hand.

*The boilerplate clause may have originated as a clause that actually gives more protection to the party (plaintiff or defendant) who stands opposed to the client in this matter.

The following concerns are most pertinent in cases that are ultimately mediated:

*An agreement that is imposed on a party by a diligent attorney may not reflect the actual needs of the client involved.

*Such clauses often raise the question as to how freely the client has been able to express thei own desire for the tenor of their agreement. Client autonomy may well be vitiated in such situations.

*An agreement with boilerplate clauses requires much explanation so the client understands what they will be asked to sign. Does this occur in all situations? I will end this blog with that question dangling “in the wind”. Litigated agreements are not mediated agreements. The client will do best with one of these agreements. As a mediator, I have concluded which method best serves my clients. Mediate don’t litigate.

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