What is a Mediated Agreement?
The term "mediated agreement" generally refers to a written and signed contract, resolving existing or potential legal issues between individuals, couples, businesses, corporations, partners, or anyone who could potentially enter into a dispute down the line. "Mediation," in general, is the name given to the process through which these agreements are created. In the field of family law, mediators like myself have a particular emphasis on the parties’ (likely) emotionally-charged interpersonal issues, which are the root cause of their differences. While judges and other court-officials will be interested in the written text of the parties’ agreements, their primary focus is the events leading up to that agreement. What occurred? How will this issue affect each of the parties? Will they retain their interest in pursuing the matter? What are their next steps? As a mediator, my focus is almost exclusively on the parties’ experience and their emotions, which I believe to be the highest available objective.
A mediated agreement is made up of written terms and conditions specifically agreed upon by both parties. Unlike a contract prepared by either party for their own best interests , the mediated agreement takes into account the priorities and concerns of both parties. The process of mediation ensures that neither party is pressured into signing the document. The mediated agreement will, therefore, resemble a contract in its form and language; however, it will contain the signatures of both parties and the mediator, making it unique to a mediated agreement. This list of signatures establishes the legitimacy of this business arrangement in the eyes of the State and will be taken seriously by the courts.
Confidentiality is a key component of the mediation process, and therefore, will be part of the agreement that the parties sign along with their mediator. Once the parties and the mediator have signed the document, the resolution must be upheld or the matter will proceed to court. Mediated agreements are binding in the same way that any other written contract would be. If a party attempts to go back to court on the issue that was already resolved, their motion will be denied. Without going through the mediation process in the first place, the judge or magistrate would be quite inclined to readdress the issue in their courtroom. Agreements negotiated through the use of a mediator are, in many instances, better alternatives to protracted litigation resolutions.
The Function of a Mediator
Mediators come from all walks of life. Many mediators have been trained in coaching or counselling, while others have significant experience and training in the legal field. Professional mediators usually have completed advanced mediator training, such as the Family Mediation Canada Basic Family Mediation Course, and other required training with Continuing Education Units (CEU’s), or Accreditation for mediators, arbitrators and collaborative lawyers (MAC).
It is often said that the best mediators are not lawyers. Rather, the best mediators are those with the following soft skills: For the above skills and qualities to be effective, the mediator needs to understand the nature and dynamics of the dispute, and perceive the issues at play.
An experienced mediator can quickly identify the core interest of the parties, which is the basis for resolution for all parties. For example, a disagreement about the reconciliation of a debt can lead to a decision about a child’s schooling.
Good conflict resolution skills are a prerequisite for an effective mediator. In Family Mediation, Canada does not regulate mediators. However, just because a mediator has some formal accreditation does not mean that they are necessarily a "better" mediator that someone without accreditation. Experience and aptitude with the necessary skills are much more important than formal accreditation.
Advantages of Mediated Agreements
With a mediated agreement, the parties are in control of the process. With a court action, they are not.
First, Mediated Agreements Are Often Less Expensive Than Going Through the Court System
The majority of the time, mediated agreements cost less money than going through the court system. Usually, by the time lawyers are involved and litigation ensues, it costs a lot more money to litigate and defend. Further, if you and your spouse mediate and then disagree about what the agreement should look like, you can walk away and the negotiations end. It is not expensive if you use a paralegal or a financial planner to type up your basic terms, and you can always return to mediation later after you and your spouse have had time to deal with looking at the agreement and both of you having time to absorb it. But, if you go through lawyers to negotiate a mediated agreement, it usually costs less if you complete the negotiations and mediation process prior to getting lawyers involved. You know what the issues are going to be when you start. You may have to do a binder for lawyers if they are involved, but other than that, you can keep it simple and try to keep the costs down. A mediated agreement is the best process, and it is often less expensive, and gives you more control and power over your own decisions.
Second, Mediated Agreements Are Confidential
It is very difficult to overturn a mediated agreement when the parties did not disclose assets and rates. It is also difficult to prove coercion, duress or fraud. If people go back and forth on a negotiated agreement long enough, the courts are not going to undo everything when there is no coercion or fraud or anything like that, and the parties have bargained at arms length. You and your spouse can keep things private and confidential, and not have them in court records forever. Parents sometimes negotiate parenting agreements here in mediation where there is a protective order in place for domestic violence. It can be extremely difficult to prove, after-the-fact, a prenuptial agreement was entered into under coercion, fraud or duress when the parties have been honest and fair and bargained at arms length. It is important to keep certain things private, and it is incredibly important to protect children from certain parents who are abusive. If you have no children, you have no basis to ask for an order from the judge, nor is there any basis that a judge should see a mediated agreement.
Third, Mediated Agreements Are Typically "Speedier" To Implement
Mediated agreements are often completed much faster than court matters because there are no motions or fees incurred when using lawyers. There are no up to a year delays in the courts usually eminent (sic) when you have a court matter. All you have to do is sign the documents and have them notarized or signed by a judge. A mediated agreement can be finished often in one day, and then signed by both parties and notarized the same day. You can get a mediated agreement done in one day, and not wait months or years like you do when you have a court matter.
Scenarios that Benefit from Mediation
Mediated agreements are a common way to resolve a range of legal disputes. One of the largest categories of cases where mediation is used is in family law. Financial disputes between unmarried parents where a child or children are involved are often mediated. This would include issues such as the division of property prior to a separation or divorce and issues of child support once a separation occurs.
Other family law issues that may be mediated are things such as no contact orders even when no criminal charges have been filed. In such cases, if there are children involved, the parents can negotiate residence of the child or children. For people who have not yet been married and who have children, mediation can be a good step to take for negotiating parenting plans. In fact, it is now possible in some counties in Washington State to participate in mediation with a neutral on a pro bono basis.
Another common family law situation that is frequently resolved through mediation involves property division prior to a divorce being filed. If the parties do not want to speak to each other – for whatever reason – but realize that it is necessary to deal with property issues, this can be a useful option.
Employment issues are another common situation where mediation is frequently used to resolve disputes. Claims involving hostile work environment or sexual harassment can often successfully be mediated between the employee and his or her employer. Often times, the parties need a neutral third party to help them communicate in a productive negotiation, and a mediator can fill that role to help both sides reach a resolution.
Creating a Successful Mediated Agreement
A successful mediation ends with not just terms agreed, but also a clear and well-defined mediated agreement. Much like any contract, a mediated agreement is a roadmap for movement forward and a mechanism with which to enforce the agreed terms should one or both parties not carry through with the hand-shake agreement. It serves as the basis for future claims of breach of contract. Because the parties would most likely not contract absent the dispute, a mediated agreement also establishes terms which, no matter how good natured in making the agreement, will be too difficult or impossible to carry out. In that instance, no party is without recourse.
Essential Components of a Mediated Agreement
A well-drafted mediated agreement contains a number of essential components which, as a practical matter, should be easily found within the four corners of the document. It is advisable that the mediated agreement contain the following:
Once a mediated agreement documents the above , the parties have satisfied the material elements required for a contract.
Clarity and Completeness Are Key
An enforceable mediated agreement unambiguously states the points of agreement. In other words, complete information is essential for the agreement to be binding on the parties. Further, the agreement must be free from any ambiguity; ambiguities may justify setting aside the mediated agreement. To this end, drafters must consider what ambiguities may exist irrespective of the intent of the parties and strive to resolve every possible ambiguity.
Any omissions in the mediated agreement may result in the judicial determination of the document as incomplete. However, it is generally recognized that a mediated agreement need not contain every last detail with respect to the parties’ obligations. Such detail would necessarily undermine the very purpose of the mediation.
Is a Mediated Agreement Legally Binding?
All mediated agreements are typically considered legally binding, and courts will routinely enforce such agreements if all material facts are present. A court will interpret a mediated agreement as if it were a contract.
Pitfalls and Constraints with Mediated Agreements
Despite the numerous advantages, mediated agreements are not appropriate in every situation. Cases in which an individual is being abused or harassed – such as in many domestic violence situations – should generally not be mediated. Many legal professionals believe that mediating these types of cases can be dangerous, because it requires the abused party to interact directly with the abuser, and often allows the abuser to continue manipulating the victim into doing the wrong thing. Other legal professionals have a different view, arguing that even in the worst of cases, mediated agreements provide important advantages. What is right for one case may not be right for another, so it is important not to generalize.
Mediated agreements may also be inappropriate in other circumstances, including when one person is clearly at a disadvantage during the negotiation process, which can lead to abusive agreements, or where either party refuses to negotiate in good faith. Above all, the parties involved must be willing to negotiate in good faith. If one party is unwilling to be fair and honest with the other, mediation is unlikely to be successful. And while it may seem obvious, cases in which the parties are not rational should not be mediated. Anyone who is unable to understand the negotiation process or make appropriate decisions based on its outcome should not be a part of the process.
There are also cases where a mediated agreement may fail, even if the process is properly used and each party is rational. For example, if the mediator is biased, the mediation can quickly fall apart. The mediator does not have to be neutral, but he or she does have to act in the best interest of the parties and without bias towards one particular party. If there is a biased mediator, the case will likely need to be re-opened and resumed before a different mediator.
It is also important to keep in mind that in some situations it will be better for clients to accept a result in court rather than mediating a conflict. Mediated agreements are not meant to disrupt the traditional court system, but rather serve as an alternative to the adversarial process. Solutions reached through mediation are not legally enforceable, although they can easily be made so by putting them in the form of a court order. However, some clients will benefit from the more formal structure and authority of a court process.
Are Mediated Agreements Legally Binding
The enforceability of the mediated agreement is a common concern in mediation. Many parties to mediation are concerned about whether the mediated agreement will stand up in a court of law.
If one party fails to live up to his or her responsibilities as set forth in the mediated agreement, the other party may have to go to court to require compliance with the agreement.
In the case of mediated parenting agreements, the court will not enforce the agreement unless the terms of the mediated agreement are incorporated into a final order. However, if the mediated agreement addresses issues of child custody or visitation, a court may look to the mediated agreement as evidence of the parties wishes, even if the agreement is not included in a final order.
Most mediator clients are aware that the mediated agreement must be in writing. However, not all mediators complete the written agreement. Some mediators draft a memo stating the issues settled and the tentative deal (on which all are agreed) and at the conclusion of the process, ask the parties to put it into more formal written stipulations. This is sometimes done when a party is reluctant to sign a mediated agreement, such as in the case of family members who have verbally agreed on terms but do not like the notion of memorializing the deal, requiring their approval for future changes.
Whether or not the mediator completes the permanent document , once the mediated agreement is signed by the parties, it is in the process of becoming a legally enforceable contract. The next step is for the mediated agreement to be signed by a judge or other official of the court.
The judge may sign the mediated agreement and make it an order of the court. Assuming both parties have signed the mediated agreement, then the agreement is almost certainly enforceable as a matter of law, and the court will most likely enforce the mediated agreement.
Judges routinely recognize a mediated agreement as enforceable, regardless of whether the mediator has completed the written agreement and draft of permanent stipulations. Often, the judge will sign the mediated agreement and make it an order of the court. Although, the judge may elect to put off signing the mediated agreement for several reasons, such as needing more time to review the agreement. In some cases, the judge may find the mediated agreement not acceptable for certain reasons, such as requiring children to testify in parenting matters.
Regardless of how, and under what circumstances, the mediated agreement is signed, it is important that the mediated agreement contain the signatures of the parties, thereby putting the other party on notice of their rights and obligations under the terms of the mediated agreement.