Mediation

Very often, parties to a divorce case reach an agreement which is presented to the court for its approval as the parties' agreed decree of divorce, thereby avoiding the uncertainty of, and the emotional wear and tear associated with, trial. As well, attorney fee and other expenses may be reduced, particularly if an agreement is reached at an early stage of the litigation. If both parties have "realistic" objectives and equally competent counsel, such agreements occur more often than not.

In the early 1980's, an additional tool was added to assist litigants in reaching such agreements - "mediation", a form of "alternative dispute resolution".  A "mediator" is neutral third party who conducts that process and has special training in assisting litigants reach agreements. This section discusses some of the strengths, weaknesses, and uncertainties associated with the mediation process.

   Pros & Cons
   Statutes & Rules
   The Dispute Resolution Act
   Supreme Court Rules and Procedures for the Dispute Resolution Act
   Code of Professional Conduct For Mediators
   Confidentiality
   The District Court Mediation Act
   Specific Family Law Mediation Statutes
   Child Custody, Property and/or Separate Maintenance
   Child Visitation
   Child Support Exchange of Information
   Is A Divorce Agreement Reached Through Mediation Enforceable?

  PROS & CONS

In many instances, the ambiance of the divorce circumstance is neither tranquil nor objective. Often, pairs such as guilt/outrage, domination/submissiveness, betrayal/depression, possession/escape, manipulator/manipulated are involved and the existence of such pairs do not produce negotiators who are on the same emotional level, even if they are intellectual peers. In the opinion of this writer, particularly since it is a "given" that a mediator may not offer legal advice, while mediation may well be worthwhile, it should not be undertaken without legal counsel.

This opinion remains firm even if the parties are emotional and intellectual peers. Much complexity exists in Oklahoma divorce law and the mediator is prohibited from giving legal advice. So, for the same reasons suggested in the Divorce Kits section, it's best not to go it alone.

But, on the other hand, with guidance and advice from a competent divorce lawyer, mediation may (1) shorten the litigation, (2) reduce its cost, and (3) may result in an agreeable solution with which both parties have greater satisfaction in the long run. During the past few years, this writer, once a skeptic as to the desirability of mediation in a divorce circumstance, has become a cautious supporter ... if the process is handled with the same carefulness and thorough preparation as for trial would be. In other words, a thorough understanding and analysis of the facts is still necessary to be performed by the lawyer and the client prior to the mediation session itself. But, if mediation is attempted after such knowledge and analysis has occurred, it is worth the attempt.

Selection of the mediator is very important. Lawyers in the community should have knowledge about the skill and knowledge of several mediators, their fees, and their rates of success. After Oklahoma's initial mediation statutes were adopted in 1983, reasonable rules and statutes have been established as to the qualifications of mediators who engage in divorce and other family law disputes. Although two sets of family law mediator "qualifications" exist (those promulgated by the Supreme Court pursuant to the "Dispute Resolution Act" and those enacted by statute under the "District Court Mediation Act"), the qualification requirements in each set for "Divorce and Family Mediators" are similar and qualification under either authority should give reasonable assurance that a mediator who meets standard or the other is qualified to do the work. If a reader is interested in exact comparative requirements, see 12 O.S. §1825 and Rule 11, Rules and Procedures for the Dispute Resolution Act, 12 O.S., Ch. 37, App. Care should be taken to be sure that the mediator satisfies one set of standards or the other, since many mediators in Oklahoma, who nonetheless accept divorce mediation, do not.

  STATUTES & RULES

     THE "DISPUTE RESOLUTION ACT", 12 O.S. §§1801 et seq, was adopted by the Legislature in 1983. §1801 states:

The Legislature is aware of the fact that many disputes arise between citizens of this state which are of small social or economic magnitude and can be both costly and time consuming if resolved through a formal judicial proceeding. Many times such disputes can be resolved in a fair and equitable manner through less formal proceedings. Such proceedings can also help alleviate the backlog of cases which burden the judicial system in this state. It is therefore the purpose of this act to provide to all citizens of this state convenient access to dispute resolution proceedings which are fair, effective, inexpensive, and expeditious.

Of course, whether a divorce case is "of small social or economic magnitude" will certainly vary and, as well, the impact of divorce upon society is arguably quite large. The full text of the Dispute Resolution Act will not be stated here, but, in summary, it establishes procedures by which rules can be established for mediation and the qualifications of mediators. More important to this discussion is that 12 O.S. §1805 provides that (1) any information received by a mediator or his/her employees is privileged and confidential, (2) none of that information is of "public record", (3) neither the mediator nor any party may be required to disclose any matters obtaining during the mediation, among other things.

     SUPREME COURT RULES AND PROCEDURES FOR THE DISPUTE RESOLUTION ACT.  Part of the Dispute Resolution Act, 43 O.S. §1803.A., states that, "The Administrative Director [of the Courts] shall promulgate rules and regulations, subject to the approval of the Supreme Court of the State of Oklahoma, to effectuate the purposes of the Dispute Resolution Act". The Supreme Court responded in 1986, and in 1989, to that statutory directive by its Rules and Procedures for the Dispute Resolution Act, 12 O.S., Ch. 37, App. Many of these rules relate to establishment and implementation of mediation programs, procedures and credentials. Particularly, Rule 11 addresses the qualifications for family law mediators. Rule 7.D. specifically authorizes district courts to refer these types of disputes to mediation: "4. domestic problems such as divorce, legal separation, child custody, visitation, spousal maintenance, and family crisis intervention".  Pursuant to Supreme Court authorization, some of Oklahoma's Judicial Districts have adopted local formal or informal rules. For example, see Rules 47 and 48, Rules of the Seventh Judicial District (Oklahoma and Canadian Counties) and Rule Cv 16 of the Fourteenth Judicial District (Tulsa and Pawnee Counties), as well as Tulsa County's controversial (at least outside Tulsa County) Families In Transition program which typically requires mediation as a matter of course. No "local" rules receive further discussion here. And, only a few of the Supreme Court's rules receive particular discussion:  The Code of Professional Conduct For Mediators and rules associated with confidentiality.

  Code of Professional Conduct For Mediators.  Appendix A of the rules establishes a Code of Professional Conduct For Mediators, set out fully below:

1. The Responsibility of the Mediator to the Parties.
a. Initiating Mediation. Any agency or person may make recommendations, suggestions, or urgings, but the decision to engage in mediation is made solely by the disputing parties themselves, unless mediation is mandated by legislation, by court order, or by contract.
b. Involvement of Parties.
(1) The mediator urges that the parties agreeing to mediation take an active role in the mediation process.
(2) In the event of non-resolution, the mediator informs parties of the options available to them under the provisions of the Act.
c. Parties' Mutual Agreement on the Mediator. The mediator begins mediation only with mutual consent by the parties.
d. Responsibility of the Parties in Mediation.
(1) The parties, not the mediator, are responsible for decisions made during mediation, as they are not being represented independently by the mediator.
(2) The mediator never forces parties into reaching a settlement.
(3) The mediator never makes decisions for parties.
e. Termination of Mediation.
(1) The mediator suspends or terminates mediation when it appears that continuation would harm or prejudice any party.
(2) The mediator terminates the mediation session when it appears that a party is unable or unwilling to make an effort to meaningfully participate in the mediation process.
(3) The mediator terminates mediation when it appears that mediation is not productive, and the parties are unwilling to continue.
(4) The mediator shall not proceed when a party appears to be intoxicated, irrational or exhibits impaired judgment.
2. The Responsibility of the Mediator to the Mediation Process.
a. Mediator's Expertise.
(1) The mediator performs mediation services only where qualified to do so by experience and training.
(2) The mediator makes appropriate referrals when parties need additional information in order to resolve their conflict.
b. When It Is Improper to Be Mediator.
(1) The mediator who has represented or counseled a client beforehand shall not accept the role of mediator.
(2) The mediator who has prior acquaintance with a party shall not accept the role of mediator, unless the current parties, when informed of the prior acquaintance, mutually   agree that the mediator shall conduct the mediation.
(3) The mediator who has biases or prejudices either for or against one of the parties or the issues in dispute shall not accept the role of mediator.
c. Mediator's Impartiality.
(1) The mediator shall maintain impartiality at all times.
(2) The mediator does not represent a party of mediation in court concerning the issues which were the subject of mediation.
d. Mediation and the Law.
(1) The mediator shall not offer legal advice to parties.
(2) The mediator shall allow parties to independently assess their legal position and/or seek the assessment of an attorney.
3. The Responsibility of the Mediator Toward Other Mediators.
a. Joining Mediation in Progress.
(1) The mediator shall not enter a session already in progress without first conferring with the other mediator.
b. Working With Other Mediators.
(1) The co-mediator shall keep the other mediator(s) fully informed of developments during the course of mediation.
(2) The co-mediator shall not show disagreement with, nor criticism of, the other mediator(s).
4. The Responsibility of the Mediator to the Sponsoring Agency and to the Profession.
a. Mediator's Role During Mediation.
(1) The mediator shall accept full responsibility for the honesty and merit of interventions or suggested options initiated by the mediator.
(2) The mediator shall withdraw when requested to by the parties, or upon discovering an inability to fulfill the requirements of the Act or the Oklahoma Rules and Procedures for the Dispute Resolution Act.
(3) The mediator shall work within the policy of the sponsoring agency, and shall avoid the appearance of impropriety.
(4) The mediator shall not use the third-party role for personal gain or advantage.
(5) The mediator shall not accept money nor anything of value for services, other than the collection of fees listed elsewhere in the Oklahoma Rules and Procedures for Dispute Resolution Act.
(6) The mediator shall not voluntarily incur obligations or perform professional services that might interfere with the ability to act as an impartial mediator.
5. The Responsibility of the Mediator to the General Public.
a. Confidentiality of Mediation.
(1) The mediator shall not reveal, outside the negotiations, information gathered during mediation.
(2) The mediator may disclose information from mediation after obtaining the expressed, written permission of all pertinent parties or when permitted by statute.
(3) Under the Protective Services for the Elderly Act of 1977 (Title 43A Section 801 et seq.), and Title 21 Section 846 which deals with persons under age eighteen, the mediator is responsible for reporting information to the proper agencies upon learning that any elderly or handicapped person or child has had physical injury or injuries inflicted upon him or her, by other than accidental means, where the injury appears to have been caused as a result of physical abuse or neglect.

  Confidentiality.  Appendix C reiterates and substantially expands 12 O.S. §1805's confidentiality requirement. And, Rule 10 imposes similar requirements on non-parties, as well.

Appendix C.  Confidentiality of Proceedings
A. Any information received by a mediator or a person employed to assist a mediator, through files, reports, interviews, memoranda, case summaries, or notes and work products of the mediator, is privileged and confidential.
B. No part of the proceeding shall be considered a matter of public record.
C. No mediator, initiating party, or responding party in a mediation proceeding shall be subject to administrative or judicial process requiring disclosure of any matters discussed or shall disclose any information obtained during any part of the mediation proceedings.
D. Each mediation session shall be informal. No adjudication sanction or penalty may be made or imposed by the mediator or the program.
E. No mediator, employee, or agent of a mediator shall be liable for civil damages for any statement or decision made in the process of mediating or settling a dispute unless the action of such person was a result of gross negligence with malicious purpose or in a manner exhibiting willful disregard of the rights, safety, or property of any party to the mediation.
F. If a party who has participated in mediation brings an action for damages against a mediator arising out of mediation, for purposes of that action the privilege provided for in subsection A of this section shall be deemed to be waived as to the party bringing the action.

Rule 10.  Rules of Conduct For Outside Parties Attending Mediation
A. All persons attending a mediation session shall respect and maintain the total confidentiality of the session.
B. When one party in a mediation session requests an assisting party, the following rules must be outlined and agreed to by the assisting party prior to initiating the mediation session:
1. An assisting party may advise only his/her client. The assisting party shall speak only with the mediator or his/her client and cannot interrogate the opposing party during the mediation session.
2. The party without an assisting person present must consent to allowing the other person's assisting party in the mediation session, or be given an opportunity to secure his/her own assisting party to be present during the mediation session.
3. If a party who is without an assisting party refuses to participate in mediation due to the presence of another's assisting party, no mediation session will be conducted.
C. If a party requests a non-assisting friend or relative to attend the session, attendance shall be allowed only if agreed upon in advance by the other party and is not in violation with program policy. The person may then be in the room but in no way may interrupt, or interfere with proceedings. Such a person shall not be heard nor allowed to display distracting behavior.
D. If the mediating parties agree, a neutral third party may serve as a resource person for the mediator and the parties. Such a person shall participate only on request and must remain impartial.
E. Mediation sessions shall not be filmed, taped, or otherwise recorded.

     THE "DISTRICT COURT MEDIATION ACT", 12 O.S. §§1821, et seq, was adopted in 1998, and, while not replacing the earlier statute, this Act provides more guidance than the 1983 Dispute Resolution Act and tracks some parts of the Supreme Court's Rules and Procedures for the Dispute Resolution Act, both discussed above. This statute makes specific provision for "divorce and family mediator" training requirements. See 12 O.S. §1825. Among other things, §1823 specifically states that:

Any district court, by agreement of the parties, may refer any civil case, including any domestic relations case, or any portion thereof for mediation. A referral to mediation may be made at any time while a civil case is pending. * * *

Another of this statute's sections is highly important and its text is fully stated below:

12 O.S. §1824. Provisions applying to court-ordered mediation.
The following provisions shall apply to any mediation ordered by a court pursuant to Section 3 of this act:
1. Mediation shall be a process in which an impartial person, the mediator, facilitates communication between disputing parties to promote understanding, reconciliation, and settlement. Participants shall include the mediator, the parties, interested non-parties or their representatives, and all others present. The mediator may meet with participants together or individually;
2. The mediator shall be an advocate for settlement and use the mediation process to help the parties fully explore any potential areas of agreement. The mediator shall not serve as a judge and shall not have authority to render any decisions on any disputed issues or to force a settlement between the parties;
3. The parties shall be responsible for negotiating any resolution to a dispute. Parties shall participate in mediation in good faith, and put forth their best efforts with the intention to settle all issues if possible. If the parties are unable to settle all issues, they shall attempt to settle as many issues as possible;
4. No person with any financial or personal interest in the result of mediation may serve as a mediator. Prior to agreeing to mediate a dispute, the mediator shall disclose any circumstances likely to create a presumption of bias or prevent a prompt meeting with the parties;
5. Mediation sessions shall be private. Persons other than the parties and interested non-parties and their representatives may attend only with the consent of the parties, interested non-parties, and the mediator;
6. Any communication relating to the subject matter of the dispute made during the mediation process by a participant or any other person present at the mediation shall be a confidential communication. No admission, representation, statement, or other confidential communication made in setting up or in conducting the mediation shall be admissible as evidence or subject to discovery, except that, no fact independently discoverable shall be nondiscoverable solely by virtue of having been disclosed in such confidential communication. There shall be no stenographic or electronic record, including audio or video, of the mediation process unless it is agreed upon by the parties, interested non-parties, and the mediator, and it is not otherwise prohibited by law. No participant in the mediation proceeding, including the mediator, shall be subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting the mediation proceeding; and
7. No subpoena, summons, complaint, petition, citation, or other process of any kind may be served upon any person who is at or near the site of any mediation session and is there because of the mediation.

     SPECIFIC FAMILY LAW MEDIATION STATUTES.  Although both the Supreme Court's Rules and 12 O.S. §1823 specifically provide for divorce/custody/etc. issues being referred to mediation, portions of Title 43 Oklahoma Statutes (which contains most statutes relating to divorce and issues ancillary thereto) specifically expand or reduce mediation referrals: 43 O.S. §107.3.B. (property, separate maintenance, custody); 43 O.S. §111.3 (visitation); and 43 O.S. §118 (child support exchange of information).

  Child Custody, Property and/or Separate Maintenance.  43 O.S. §107.3.B. limits mediation referrals if allegations of domestic violence or child abuse are involved:

B. When property, separate maintenance, or custody is at issue, the court:
1. May refer the issue or issues to mediation if feasible unless a party asserts or it appears to the court that domestic violence or child abuse has occurred, in which event the court shall halt or suspend professional mediation unless the court specifically finds that:
a. the following three conditions are satisfied:
(1) the professional mediator has substantial training concerning the effects of domestic violence or child abuse on victims,
(2) a party who is or alleges to be the victim of domestic violence is capable of negotiating with the other party in mediation, either alone or with assistance, without suffering an imbalance of power as a result of the alleged domestic violence, and
(3) the mediation process contains appropriate provisions and conditions to protect against an imbalance of power between parties resulting from the alleged domestic violence or child abuse, or
b. in the case of domestic violence involving parents, the parent who is or alleges to be the victim requests mediation and the mediator is informed of the alleged domestic violence; and
2. When custody is at issue, the court may order, in addition to or in lieu of the provisions of paragraph 1 of this subsection, that each of the parties undergo individual counseling in a manner that the court deems appropriate, if the court finds that the parties can afford the counseling.

  Child Visitation.  A 1998 statute, 43 O.S. §111.3, adds some twists to what has been said above, one of which is that upon the filing of a "motion for enforcement of visitation rights", the court may order mediation ex parte (which is to say, without notice to the other party) and without the parties' mutual consent. The full text of this statute reads:

43 O.S. §111.3. Interference with visitation rights of non-custodial parent - Motion for enforcement.
A. When a non-custodial parent has been granted visitation rights and those rights are denied or otherwise interfered with by the custodial parent, in addition to the remedy provided in subsection B of Section 111.1[indirect contempt of court] of Title 43 of the Oklahoma Statutes, the non-custodial parent may file with the court clerk a motion for enforcement of visitation rights. The motion shall be filed on a form provided by the court clerk. Upon filing of the motion, the court shall immediately:
1. Issue ex parte an order for mediation; or
2. Set a hearing on the motion, which shall be not more than twenty-one (21) days after the filing of the motion.
B. Within five (5) days of termination of mediation ordered pursuant to paragraph 1 of subsection A of this section, the mediator shall submit the record of termination and a summary of the parties' agreement, if any, to the court. Upon receipt of the record of termination, the court shall enter an order in accordance with the parties' agreement, if any, or set the matter for hearing, which shall be not more than ten (10) days after the record of termination is received by the court.
C. Notice of a hearing pursuant to subsection A or B of this section shall be given to all interested parties by certified mail, return receipt requested, or as ordered by the court.
D. If the court finds that visitation rights of the non-custodial parent have been unreasonably denied or otherwise interfered with by the custodial parent, the court shall enter an order providing for one or more of the following:
1. A specific visitation schedule;
2. Compensating visitation time for the visitation denied or otherwise interfered with, which time shall be of the same type (e.g. holiday, weekday, weekend, summer) as the visitation denied or otherwise interfered with, and shall be at the convenience of the non-custodial parent;
3. Posting of a bond, either cash or with sufficient sureties, conditioned upon compliance with the order granting visitation rights;
4. Assessment of reasonable attorney fees, mediation costs, and court costs to enforce visitation rights against the custodial parent;
5. Attendance of one or both parents at counseling or educational sessions which focus on the impact of visitation disputes on children;
6. Supervised visitation; or
7. Any other remedy the court considers appropriate, which may include an order which modifies a prior order granting child custody.
E. If the court finds that the motion for enforcement of visitation rights has been unreasonably filed or pursued by the non-custodial parent, the court may assess reasonable attorney fees, mediation costs, and court costs against the non-custodial parent.
F. Final disposition of a motion filed pursuant to this section shall take place no later than forty-five (45) days after filing of the motion.
G. The Office of the Court Administrator shall develop the form required by subsection A of this section to be used for a motion to enforce visitation rights.

  Child Support Exchange of Information.  43 O.S. §118 is Oklahoma's "Child Support Guidelines" main statute. Subsection 118.C.16. relates to the parties' annual or less often exchanging "information for an informal review and adjustment process," and like the visitation statute discussed above, makes provision for the cost allocation of mediation expense.  Subsection 118.C.16.f. provides that:

f.    (1) If the parents fail to cooperate in the exchange of information, either parent may move for a modification hearing or for mediation. The district or administrative court on its own motion may refer the parents to a mediator.
    (2) If referred to mediation, and modification is subsequently found to be appropriate, the modification shall be effective on the date the motion was filed.
    (3) Costs for mediation, if any, shall be paid by the parent who failed to cooperate in the exchange of information. Otherwise, the court may assess costs equally between the parents, or as determined by the court;

  IS A DIVORCE AGREEMENT REACHED THROUGH MEDIATION ENFORCEABLE?

The context of this section is that divorce issues are submitted to mediation, an agreement is reached and the mediator so reports, but then a party changes his/her mind and wants out of the agreement, for whatever reason. Despite the change of mind, can the other party nonetheless succeed in a request that the agreement be approved as the court's decree?

That's a good question to which this writer wishes he knew the answer!  The issue has not been addressed in any appellate court decision in a divorce or family law context. But, Vela v. Hope Lumber & Supply Company, 1998 OK CIV APP 162, 966 P.2d 1196, and, arguably, Rader v. Farmers Ins. Co., Inc., 1997 OK 16, 934 P.2d 332, both negligence based personal injury disputes involving attempted enforcement of mediation agreements, indicate that mediation agreements are enforceable and/or actionable. But, at least two decisions, each being prior to mediation's advent, say rather plainly that divorce agreements are not enforceable unless or until approved by the court.

In Vela v. Hope Lumber & Supply Company, mediation of an automobile negligence dispute resulted in an agreement that the claimant would receive a sum of money in exchange for which the claimant would dismiss her pending lawsuit. Following the mediation, the money was tendered together with a dismissal to be signed by the claimant. After the claimant refused to accept the money and sign the dismissal, the other party filed a motion to enforce the parties' settlement agreement. Eventually (and although I'm simplifying what occurred procedurally), the trial court granted that motion. In the claimant's appeal, she maintained as follows:

¶5 In the main portion of her nine propositions of error on appeal, Plaintiff challenges the trial court's determination of enforceability of the Mediation Agreement, arguing that her attorney, the mediator, and a third-party all lied to and threatened her in order to obtain her consent to and signature on the Agreement. Accordingly, Plaintiff complains the trial court effectively granted summary judgment to Defendants despite a controversy of material facts concerning Plaintiff's defenses to enforcement of the settlement agreement.

Her arguments failed:

¶6 We disagree. We first note use of alternative dispute resolution procedures such as mediation is encouraged. See, Rule 47, Rules of the Seventh Judicial District [Oklahoma and Canadian Counties], Oklahoma Court Rules and Procedure, (West, 1998), pp. 935 et seq., at 946. We secondly note that Oklahoma law recognizes that an agreement to settle a claim constitutes a contract between the parties which should not be set aside absent fraud, duress, undue influence, or mistake. See, Barnes v. Helfenbein, 1976 OK 33, 548 P.2d 1014; Jones v. First National Building Corporation, 15 F.2d 815 (10th Cir. 1946). In the construction of settlement agreements, the Oklahoma Supreme Court has held:
. . .If the language of a contract is clear and without ambiguity, the court is to interpret it as a matter of law. (Citation omitted.) . . . In the absence of fraud or mistake, an executed agreement of settlement is as conclusive against a party seeking to avoid it as the final judgment of a court of competent jurisdiction. (Citation omitted.)
Corbett v. Combined Communications Corp. of Oklahoma, Inc., 1982 OK 135, ¶5, 654 P.2d 616, 617-618.
* * *
¶8 Our review of the record reveals Plaintiff harbors substantial misgivings concerning the entire mediation/settlement process: that Plaintiff changed her mind after executing the Agreement is self-evident; that Plaintiff entertains substantial animus toward the other parties to the Agreement, including her own attorney and the mediator, is likewise plain; and that Plaintiff believes the process tainted by improper motives of the others involved is palpably clear. However, from our review of the record, we discern no error of law, abuse of discretion or arbitrary and capricious action by the trial court in denying Plaintiff's motion for new trial, the record in our view showing no facts indicating otherwise than Plaintiff signed the Mediation Agreement of her own free will, that she understood the nature and consequences of her acceptance of the settlement terms, and that the Agreement contains no ambiguity which could have caused its execution by mistake. Stated otherwise, the record in our view simply does not bear out a factual basis for Plaintiff's speculation as to the conspiracies, threats, and other improper motives of her counsel, Defendants' counsel, and the mediator. Finding no basis in the evidence of record supportive of Plaintiff's claims, therefore, we reject these propositions.

A focus on pre-decree "mediation" instead of "agreement" probably misses the real issue. Presumably, the parties' agreement in Vela v. Hope Lumber & Supply Company, supra, would have been as enforceable had it been arrived at without mediation having been used at all. And, in at least a couple of cases, the Oklahoma Supreme Court has used language which might mitigate against enforceability of a divorce agreement unless and/or until it is approved by the court. In Acker v. Acker, 1979 OK 67, 594 P.2d 1216, the court said:

¶7 Ordinarily, a settlement agreement entered into in contemplation of divorce is not binding on the trial court in the divorce proceeding, and it has the authority to approve, modify, or totally reject such agreement. Campanello v. Mason, Okl., 571 P.2d 449 (1977).

And, in Dickason v. Dickason, 1980 OK 24, 607 P.2d 674, the Supreme Court noted that:

¶9 A pre-divorce property settlement agreement is not enforceable absent its affirmative approval by the court. Once incorporated in full or in part by judicial approval, the parties' contract merges into the decree to the extent that its terms are embodied therein.

Comparing negligence and divorce cases may be like mixing apples and oranges, this author doesn't know. But, with or without mediation as the means by which a pre-decree agreement is reached, whether a pre-decree settlement agreement may serve as the basis for entry of judgment over the objection of a party is an issue which needs clarification by the Legislature and/or our appellate courts.