Memorandum of Understanding (MoU)
When parties reach an agreement at the end of mediation, it’s usually appropriate to record the terms as a Memorandum of Understanding.
What Is a Memorandum of Understanding?
A Memorandum of Understanding is not a legally binding contract. Rather, it is exactly what its name suggests — a memorandum (i.e. written record) of an understanding (i.e. a presumed or provisional resolution or agreement).
Memoranda of Understanding (MoUs) are particularly appropriate in mediation because the terms of a mediated settlement usually develop over time — perhaps over several lengthy mediation sessions. As such, the possibility arises of the parties’ (as well the mediator who drafts the MoU) having different understandings as to what has been supposedly agreed. The Memorandum exposes any such differences and, if none exist, establishes in writing a common understanding. The parties can then sign this document to indicate their acceptance or resolution of its terms.
Legal Context of an MoU
In most states, all recordings (including Memoranda of Understanding) from the conduct of a mediation process are legally confidential. This renders an MoU inadmissible as evidence in court (unless the MoU explicitly references the parties’ consent to waive any legal confidentiality protections).
Far from undermining the usefulness of an MoU, legal confidentiality has a fortuitous effect on an MoU. It renders the entire mediation process safe to explore ideas with a view towards potential settlement and even allows parties to sign an MoU without stipulating to a legally binding contract. (Of course, these consequences are the very raison d’ être of mediation’s legal confidentiality, not mere side-effects.) Having established an understanding (through their signatures upon the MoU), the parties may then consult their respective attorneys to review the terms of resolution recorded in the document, if they desire, before the terms of the Memorandum become legally binding.
Introduction to the Sample Memorandum
The sample Memorandum included here addresses two, three, or four principal topics: property division, spousal support (also known as maintenance or alimony in some states), child custody/coparenting arrangements, and child support. For illustrative purposes, the sample reflects a complex case involving coownership of the family residence as well as some intricate coparenting arrangements. Although many MoUs will be less complex, you’ll likely find this sample/template a valuable reference.
Sample Memorandum of Understanding
Download complete Memorandum of Understanding (PDF)[~ 4750 words]
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