Do You Have An Enforcement Clause In Your Mediation Agreements to Cover Attorney Fees?

Sydney Mitchell:

Hi. My name is Sydney Mitchell.

Matthew Brickman:

Hi, I’m Matthew Brickman, Florida Supreme court mediator. Welcome to the Mediate This! Podcast where we discuss everything mediation and conflict resolution.

Matthew Brickman (00:14):
Hi. Today I want to talk to you about a question that, uh, I get asked often when it comes to the attorney’s fee provision and enforcement. So in all of my agreements, and, uh, I would highly suggest as a mediator that when you are, uh, doing your negotiation, having your mediation, that there is an enforcement clause in your agreement. Uh, both the mediation agreement and or the parenting plan, if you have one of those, should be in both of those, um, that you do have an enforcement clause that gives your entire agreement teeth and without enforcement. Um, you’ve got a bunch of words on a page that may or may not, uh, be enforced. And if you do have a violation, you’ve gotta go to court. Well then good luck getting your attorney’s fees paid by the other party who may have, may complied with the terms of the agreement.

Matthew Brickman (01:13):
So then you’re constantly having to spend your own money to get the other party to comply. Um, I always tell people in mediation, you should never have to spend your money to get the other person to comply if there is a violation of the agreement. So let’s talk about, um, the lingo and the language. So, um, if there is a violation of the agreement, what, um, sometimes that’s called a prevailing party clause, um, or an enforcement clause. And there’s different language or languages and terms that are used or, and as a mediator I have used through the years, but the feedback that I’ve gotten from attorneys, the feedback that I’ve gotten from, uh, people that I’ve mediated for has led to constantly changing those terms and making it better, um, so that enforcement can be had. So where we first started out was we had a term called the party found in contempt.

Matthew Brickman (02:14):
So contempt is only determined by a court, and it’s done by a judge who says, yes, you violated this agreement. Um, and I find you in contempt of court. Now, that is an indirect contempt. Direct contempt would be like if you start mouthing off and swearing at the judge. That is called direct contempt. It happens directly in a court hearing to the judge, and that’s a direct contempt. Other than that, it’s indirect contempt. And so you can have in your agreement that the party found in contempt has to pay the other person’s attorney’s fees. Now, here’s the problem. That’s a name tag. And so a judge actually has to make a determination that it was maybe willful or intentional, um, not just a misunderstanding or a one-off. They may give them a pass. And so you file your motion for contempt enforcement off to court.

Matthew Brickman (03:11):
You go, the judge says, yeah, you know, they didn’t comply, but I’m not gonna find that they’re in contempt if they do not find that that other person is in contempt, even though you have that clause in your mediation agreement, you’re not getting your fees paid. That’s a problem. If the other party who did violate the agreement, if something does not happen because of the behavior, well then all you did is you just fed the monster and they’re going to take their, uh, level of egregiousness now to a new level, um, because they got away with it. So what did we as practitioners do? We changed the language. So find a judge doesn’t have to find a party is in contempt. And so we changed it to the party, found violating. Um, that ended up making it a little bit easier, but still not because it’s still a name tag.

Matthew Brickman (04:04):
Did you violate, was it willful? Was it intentional? Did you have an understanding and then choose not to? Was it a misunderstanding? It still requires the judge to make a finding. And so for all the reasons we just talked about with finding a party in contempt, it was still lacking the enforceability to where, um, a party would get their attorney’s fees paid. So then we changed it yet again. So it wasn’t the party found in contempt, it wasn’t even the party found violating. We changed it to the prevailing party. So that’s a common term that, uh, people have heard about, about a prevailing party clause. Still the same problem. There has to be a determination. Somebody has to be named a winner, the prevailing party. And if one party is not named the prevailing party and the other party named the non-pro prevailing party, oh my gosh, we’re in the same exact situation of getting your attorney’s fees paid.

Matthew Brickman (05:07):
Um, and usually let’s back up and talk about attorney’s fees in an original action. Um, usually somebody is requesting attorney’s fees and fees can be awarded for causing unnecessary litigation fees can be awarded for, um, failing to accept a reasonable offer. Uh, but fees can also be granted on what we call need versus ability to pay. So for example, the husband makes a hundred thousand dollars a year. The wife makes $17,000 a year, husband has a greater ability, wife has a need, and so maybe the husband will have to pay all or a portion of the wife’s attorney’s fees for the divorce action. Um, so a lot of times after a uh, agreement is struck, and then when someone is looking for enforcement, well then somebody files motion for contempt enforcement and the other attorney says, well, we need to do discovery. You need to do a new financial affidavit.

Matthew Brickman (06:12):
You need to give us your bank accounts and your, and your tax returns and stuff. And it’s like, why? We’re just looking for contempt. Well, because they’re looking to determine need versus ability to pay to try to help their client get out of having to pay the attorney’s fees when, uh, there might be a contempt violating or prevailing party clause. So how do we fix this? Well, how this is done is, this is done by simply changing the language to read as follows. It says in the event, any action is brought in the future for the enforcement or contempt of any provision of this agreement or subsequent final judgment between the parties, the non defaulting party. Now that’s important. That’s not prevailing party, that’s not the party found in contempt. That’s not the violating party. It’s simply we change it to defaulting. Non defaulting. Are you the non-fasting party of the defaulting party?

Matthew Brickman (07:21):
It’s not a name tag, your Honor. We’re standing in front of you. Somebody defaulted. So they’d, so there’s not a finding. Nobody has to find that somebody did something and give them a name tag of you’re the party found in contempt. You’re the violating party. You’re the prevailing party, no defaulting non-default. So it says the non-default party shall be entitled. That’s a command, not maybe entitled, not possibly shall be entitled to recover reasonable attorney’s fees and costs from the defaulting party inclusive of such fees, cost, and expert fees incurred in the determination of the reasonableness of such fees incurred in the enforcement or contempt action at the trial court and appellate levels. So what does that all mean? That means that if somebody does not follow the terms and then you’ve got to lawyer up and you go in front of the judge when it gets to this section, it really needs to be stated from the attorney to the judge saying, your honor, this is not a finding.

Matthew Brickman (08:29):
You don’t have to find that the other party was in contempt. You don’t have to find that they violated. You don’t have to find that they did not prevail in this action. This is simply defaulting. We know that the other party defaulted. You just found that they defaulted. Therefore, you have to reimburse, you have to grant the reimbursement of attorney’s fees and costs. Now, why do I say reimbursement? Because both parties are most likely going to pay their own attorney’s fees to get to this point, but this says shall be entitled to recover. That means reimburse. So say for example, that the husband is filing a motion for contempt against the wife. The wife did, or now former wife did violate the agreement. The husband had to pay his attorney, the wife had to pay her attorney, and now the wife may have to then reimburse the husband for his attorney’s fees.

Matthew Brickman (09:27):
Now, it also talks about, um, determining the reasonableness of such fees. Sometimes a judge will grant fees and then the, the other attorney goes, well, I think that, that, that that amount is unreasonable. And a judge will say, okay, I’m gonna reserve on the amount. I’m gonna grant that they are going to be reimbursed. But you know what? Go back, go through all your billing, look at it, all exchange it, and then we’ll make a determination. Well, guess what? That’s gonna take time. The attorney is going to bill the client to go and have to now look at all the billing to give it to the other side. Well, what this language does in my agreements is you also will recover the monies that are spent to determine the reasonableness. So you’re gonna get your fees paid. But what’s important is that the attorneys lead the court, they inform the judge, your honor, this is not based off of need and ability.

Matthew Brickman (10:28):
This is not that you have to fi make a finding of contempt violation or prevailing party for the simple fact that we are standing here and for the simple fact that we have shown that there is a default. My client is entitled to recover reasonable fees and then you get your enforcement. And so, um, when you are with your attorney or with your mediator, it’s important to make sure that your enforcement clause has the proper language so that number one, you can get your fees reimbursed if there’s a violation. And also it’s important that your counsel argues this appropriately in front of the court to make sure that you get your reimbursement without having to do discovery because enforceability is not need versus ability when you’ve got this particular language in your agreement.

Matthew Brickman:
Occasionally Sydney and I will be releasing Q & A bonus episodes where we will answer questions and give you a personal shout out.

Sydney Mitchell:
If you have a comment or question regarding anything that we discuss, email us at info@ichatmediation.com that’s info@ichatmediation.com and stay tuned to hear your shout out and have your question answered here on the show.

Matthew Brickman:

For more information about my services or to schedule your mediation with me, either in person or using my iChatMediation Virtual Platform built by Cisco Communications. Visit me online at www.iMediateInc.com. Call me at 561-262-9121, Toll-Free at 877-822-1479 or email me at MBrickman@iChatMediation.com.