This is an important question for mediators to ask as is demonstrated by the Fourth District Court of Appeal in Kirsch v. Kirsch, Case No. 4D05-4170 [Fla. 4th DCA 2006]. This case addresses trial court treatment of an ambiguous provision in a mediation agreement.
The agreement expressly provided that the parties would “stipulate to the recommendations of Canoy Roberson,” the children’s therapist regarding reunification of the father with the children and that the mother would retain sole parental responsibility until such time as the named therapist recommended shared parental responsibility. This therapist was the only therapist referenced by name in the agreement; however, the agreement did provide that the mother could take the children to an “additional therapist to address concerns other than those being addressed by” Roberson and that the father would be responsible for half of the uninsured costs of therapy “between the children and [Roberson] or any mutually acceptable therapist.” After the mediation agreement was ratified by the court, the named therapist resigned. The trial court determined that the detailed language of the agreement was unambiguous and the appellate court disagreed finding that the mediation agreement contained a latent ambiguity because it does not address the eventuality of the named therapist’s unavailability.
The lesson here is, “What if . . . ?” Say, how about the parties building in a dispute resolution procedure [i.e. return to mediation before litigation, although not to a specifically named mediator] not only about performance or non-performance under a mediation agreement but also about interpretation of its terms? Just a thought!
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