Standing by His Word: A Father’s Commitment to His Mediated Agreement

A Narrative Story of In re the Marriage of Tornstrom, 887 N.W.2d 680 (Minn. Ct. App. 2016)

The eight-hour mediation session in September 2015 had been emotionally draining, but Thomas Erle Tornstrom* felt a profound sense of relief when he and Jennifer Lynn Tornstrom* finally reached their agreement. After months of uncertainty about his children’s future and the dissolution of their marriage, they had worked through every detail with their attorneys and the mediator present. When the mediator asked them to confirm their understanding on tape, Thomas spoke clearly: he understood the terms, he couldn’t change his mind, and he intended to be bound by this agreement.

The custody evaluation had been particularly stressful for Thomas. As a devoted father, he worried constantly about what would be best for his two young children. When the evaluator recommended that he receive sole legal and physical custody, Thomas felt both validated and overwhelmed by the responsibility. The mediated settlement reflected this recommendation while ensuring Jennifer would have meaningful parenting time – two weeknights, every other weekend, and extended summer visits.

The financial aspects of their agreement also brought Thomas peace of mind. They had worked out a fair property division where Jennifer would receive her 403(b) plan and a portion of his 401K, while he would keep the marital home and provide her with an additional property settlement. Most importantly, they agreed that neither would pay the other spousal maintenance or child support, creating a clean financial break that would allow both to move forward.

Three days after the mediation, when the mediator emailed the detailed settlement terms to both attorneys, Thomas felt confident they were moving toward resolution. The mediator even noted in his email that he was “pleased we were able to resolve the case” and called it “a fair resolution.” Thomas’s attorney promptly drafted the stipulation incorporating all their agreed-upon terms and sent it to Jennifer’s attorney.

Then came the crushing disappointment: Jennifer refused to sign the stipulation. After eight hours of careful negotiation, after stating on tape that she understood and intended to be bound by their agreement, she was backing out. The anxiety returned as Thomas realized his children’s stability and his own future were once again in limbo.

Thomas knew he had to act. He had relied on their agreement in good faith – refinancing the house, preparing to pay Jennifer the agreed-upon settlement, and making plans for his new role as the children’s primary custodial parent. He moved the court to enforce their mediated settlement, supported by affidavits from both himself and his attorney detailing exactly what had transpired during that recorded session.

When the Court of Appeals issued its decision in November 2016, Thomas felt an overwhelming sense of validation and relief. The court had seen through the legal technicalities to understand the fundamental principle at stake: when parties make a binding agreement with full knowledge and legal representation, they must honor their word.

The court recognized that he and Jennifer had “orally recorded their agreement to the terms of the settlement and acknowledged their intent to form a binding agreement.” They understood that Thomas had acted in reliance on their deal, and that allowing Jennifer to simply walk away would undermine the entire mediation process that helps families resolve disputes without prolonged litigation.

Most importantly for Thomas, the court’s decision meant his children would have the stability they deserved. The custody arrangement they had carefully negotiated – giving him primary responsibility while ensuring Jennifer remained an active part of their lives – would finally be implemented. Standing in his home that would now officially remain his, Thomas felt confident that he had done right by his children and honored the commitment he had made that day in mediation.

*This story is based on the true facts of the appellate court’s decision, but the personal experiences and emotions described are a fictional representation to bring the case to life.

Question: When does an agreement reached in mediation or another ADR session become binding?

Answer: In Minnesota, a mediation agreement becomes binding only if it’s written down and signed with specific warnings that tell you the mediator doesn’t protect your interests and that signing could hurt your legal rights.

In Minnesota, mediation is intended to facilitate negotiation and help parties reach voluntary settlements. The Uniform Mediation Act, codified at Minnesota Statutes section 572.35, governs the enforceability of mediated settlement agreements. That section provides that a settlement agreement arising from mediation is non-binding unless it either: (1) contains a statement that the agreement is binding and includes a conspicuous notice that the mediator does not protect the parties’ interests and that signing may adversely affect their legal rights, or (2) the parties were otherwise advised of those warnings before signing. See Minn. Stat. § 572.35 (2024). This requirement ensures that self-represented parties understand that a mediator is a neutral facilitator and that they should consult counsel before executing a binding contract.

Question: How do courts treat mediation agreements that meet the legal requirements?

Answer: Courts treat properly signed mediation agreements like any other contract and will enforce them unless there’s fraud, pressure, or they’re unfair.

If the mediated agreement meets these statutory requirements—typically by being reduced to writing and signed by the parties—it is treated like any other contract. Minnesota courts routinely enforce such agreements unless they are ambiguous, unconscionable or tainted by fraud or duress. In Tornstrom v. Tornstrom, the Court of Appeals upheld a mediated marital dissolution settlement where the parties acknowledged the agreement’s binding effect and no evidence of duress was found, holding that a mediated agreement “will not be set aside absent fraud, duress, or a mutual mistake of fact.” Tornstrom v. Tornstrom, 887 N.W.2d 680, 685 (Minn. Ct. App. 2016). Similarly, Austad v. Oakes recognized that mediated settlement agreements are contracts and enforceable when signed with the requisite warnings. Austad v. Oakes, 793 N.W.2d 475, 482–83 (Minn. Ct. App. 2011). Once the parties execute a compliant agreement, the court may incorporate it into a decree, provided the terms satisfy statutory requirements for custody, support and property division.

Question: Can I change my mind about a mediation agreement if I haven’t signed it yet?

Answer: Yes, if you haven’t signed a written agreement with the proper warnings, either person can back out of what was discussed in mediation.

Absent a signed agreement containing the required notices, either party may withdraw from a tentative settlement. Mediators often draft a memorandum of understanding that outlines agreed-upon terms; however, that memorandum does not become binding until reduced to a written contract meeting the conditions of section 572.35. Parties should therefore ensure that any mediated settlement they wish to enforce is memorialized with the proper language and signed after they have had an opportunity to consult counsel.

Question: Can someone tell the judge what was said in mediation?

Answer: No, what happens in mediation is confidential and cannot be used as evidence in court unless everyone agrees to allow it.

Confidentiality is a fundamental component of Minnesota’s alternative dispute resolution process. The Minnesota General Rules of Practice state that, unless all parties consent and a court orders otherwise, no evidence from a mediation or other non-binding ADR session—including statements, documents, or admissions—may be disclosed in later proceedings. Minn. Gen. R. Prac. 114.08 provides that communications made in ADR are privileged and “not subject to discovery or admissible in evidence” in any subsequent action, and neutrals’ notes and recollections are confidential. The rule further limits communications to the court during the ADR process to procedural matters such as scheduling or requests for additional time. After the ADR session, neutrals may report only whether the parties reached agreement and, if authorized, identify issues remaining for trial.

Question: Why is mediation kept confidential?

Answer: Mediation is kept secret so people can speak freely and explore settlement options without worrying that their words will be used against them later in court.

These confidentiality protections encourage candid negotiation by allowing parties to explore settlement options without fear that their statements will be used against them. There are narrow exceptions: mediators must disclose information relating to threatened or ongoing abuse or neglect of a child or vulnerable adult, and binding arbitration awards may be admitted as judgments. In all other cases, statements made in mediation remain confidential and cannot be repeated to the judge or used as evidence. Attorneys and parties should therefore refrain from disclosing what was said in mediation, and mediators should not testify about the substance of the discussions. Violating mediation confidentiality can result in sanctions and undermine the efficacy of ADR programs.

Question: What should I do to prepare for mediation or an early neutral evaluation?

Answer: You should bring pay stubs, tax returns, bank statements, mortgage information, and debt records so the mediator can accurately figure out child support and property division.

Preparation is critical to achieving a successful outcome in mediation or an early neutral evaluation (“ENE”). Parties should begin by assembling financial documentation. Minnesota’s child support guidelines require disclosure of each parent’s gross income and certain deductions. Minn. Stat. §§ 518A.29–518A.34 establish that gross income includes wages, self-employment earnings, bonuses and most disability payments and that parents may receive a credit for non-joint children. Bringing recent pay stubs, tax returns, W-2 or 1099 forms, bank and investment statements, mortgage statements and information on debts allows the mediator or ENE team to accurately assess financial issues.

Question: How should I prepare for custody discussions in mediation?

Answer: You should review the legal factors courts consider for custody and gather information showing your involvement with your child, like calendars of activities and medical appointments.

If custody or parenting time is in dispute, parents should review the statutory best-interest factors and gather information demonstrating their involvement with the child. Minn. Stat. § 518.17, subd. 1 sets forth factors such as the child’s physical, emotional, cultural and spiritual needs; the level of each parent’s participation in the child’s life; the child’s need for stability; and any history of domestic abuse. Preparing calendars of the child’s activities, school and extracurricular schedules, and records of medical appointments or caregiving responsibilities helps neutrals understand the parenting dynamics. Parents should also familiarize themselves with the parenting expense adjustment under § 518A.36, which reduces the obligor’s child support based on the number of overnights he or she spends with the child.

Question: How should I mentally prepare for mediation?

Answer: You should talk with your lawyer about your goals and possible compromises, stay open to creative solutions, and be ready to listen respectfully and focus on what’s best for your family.

Prior to the session, parties should confer with their attorneys about goals and settlement options. Listing priorities—property division, support, custody—and considering possible compromises allows for thoughtful discussion. In ENE, neutrals hear each party’s narrative and provide an evaluative opinion on likely outcomes; being organized and candid helps neutrals give meaningful feedback. Parties should remain open to creative solutions and approach mediation with a problem-solving mindset. Lastly, because mediation is voluntary, mental preparation is as important as gathering paperwork; participants should be ready to listen, communicate respectfully and focus on reaching an agreement that addresses the needs of all family members.