Bar News - October 18, 2017
Alternative Dispute Resolution: How to Avoid Vague Agreement Terms that Can Lead to Future Litigation
By: Stacey Pawlik
A child leaves her orthodontist visit and is greeted by both of her divorced parents. Both parents believe that, pursuant to the wording of their parenting agreement, they have parenting time with the child after the appointment. The dispute escalates and the police are called. An officer asks the child which parent she wants to leave with. When the child choses her father, her mother becomes so loud the police ask her to leave. Imagine how this felt for the child.
Now add public scrutiny. This child was one of eight born to Jon and Kate Gosselin, of “Jon & Kate Plus Eight” fame. Long after their 2009 divorce, they are still battling out the day-to-day details of their parenting agreement, much like non-reality star parents across the nation.
In the Gosselins’ case, the local district attorney concluded that the parenting plan language was “sufficiently vague to interpret who was supposed to actually have [parenting time that day].” The authorities referred the Gosselins back to court for clarity on the issue.
The Gosselins fell into a far too common situation – the peril of the vague agreement. Despite our best efforts as attorneys, we cannot predict every life event or interpretation dispute that will arise in the decades following the creation of settlement agreements. We can, however, create agreements that are clear, concise, and written to convey the parties’ actual agreements and intentions within the four corners of their documents.
What follows are a few tips on avoiding vague language, to make sure your clients get the benefit of their bargain.
As attorneys, we seek to define ambiguous terms for our clients. But we have all had a client who insisted that both he or she and the other party completely understood what a particular phrase meant, or that they would work out between themselves any issues that arose. Either out of exhaustion from the process or a desire to believe in future cooperation, your client truly believed this theory would work. In reality, you know to expect a phone call or email when that theory fails, in which your client demands to know why you let them agree to that language in the first place.
To avoid that situation completely, define any terms that are open to multiple interpretations. Take the time to get to the root of what the parties really want out of that provision and re-phrase it if necessary.
Take the term “discipline” in a parenting plan, for example. Let’s say the parents come to an agreement in mediation that only the biological parents will be allowed to discipline their children. This begs the question, what does “discipline” mean, practically speaking? Does it mean verbal discipline? Placing a child in time-out? Telling a child they are wrong? What happens when a biological parent isn’t around? Either the term should be clearly defined, or it should be removed to make way for more precise terms that encompass the parties’ actual understanding and agreement.
Use as many dates, times and deadlines as possible. Take this phrase, for example: “Each parent shall have the option to spend two weeks of summer vacation with the child.” When does that vacation begin? When does it end? Are the weeks allowed to be consecutive? What happens when it overlaps with the other parent’s time? The more specific the days, times, and limits of each provision, the less confusing the schedules will be in the future.
Use Consistent Terms
If a specific term is used in one part of the agreement, use it consistently throughout the agreement. For instance, let’s say the parties to your agreement defined the term “vacation” in the beginning of the parenting plan. Check to make sure that all other vacations encompassing that definition are written as “vacation,” not holiday week or otherwise. The parents should be able to refer back to the defined terms when they run into trouble in the future.
Avoid using “as the parents agree” in place of a specific term.
The parents’ draft of their parenting plan listed their Thanksgiving schedule as “as the parents agree.” Would you put it in their parenting plan? It really depends on the couple and the age of the children. Safer language would provide a date by which the parents have to decide on the specific Thanksgiving plans each year. Even safer would be to list specific parenting times and days in the plan as a fallback in case they do not agree in the future.
Wherever possible, avoid leaving important recurring decisions up in the air. The parenting plan is what remains when all communication breaks down. The more specific it is, the better.
The best intentions and even the greatest legal minds will never prevent 100 percent of disagreements stemming from legal documents. If for no other reason than no person can anticipate every single outcome spanning decades of exchanges, appointments, extra-curricular activities, and so on. But by utilizing the above techniques in your mediations and negotiations, you can make every effort to ensure that your clients, their children, and the court if necessary, can look to their agreements to gain clarity in the future.
Stacey Pawlik owns and operates Breakthrough Mediations, which offers family law and civil law mediation in Portsmouth, NH. She has litigated and negotiated cases across New Hampshire for more than a decade.