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How can you ensure that a mediated agreement is enforceable?

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Mediation is a voluntary and confidential process that helps parties resolve their disputes with the assistance of a neutral third party. However, mediation does not automatically guarantee that the parties will comply with the agreed-upon terms. Therefore, it is important to know how to ensure that a mediated agreement is enforceable, especially if the dispute involves legal or financial matters. In this article, you will learn about some of the factors that affect the enforceability of a mediated agreement, and some of the steps you can take to make it more binding and effective.

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AJ Jakubowska

Family Mediator, Parenting Coordinator & Family Law Lawyer | SANE SPLIT Podcaster and Non-Influencer but passionate…
Matthew Parish

Executive Chairman @ The Foundation for Development | Post-Conflict Reconstruction | Ukraine Development Trust | Editor…
Narayanan H

Problem solver/preventer

1 The legal status of a mediated agreement

A mediated agreement is not the same as a court judgment or an arbitration award. It is a contract between the parties that reflects their mutual consent and understanding. Depending on the jurisdiction and the nature of the dispute, a mediated agreement may or may not have the same legal force as a court order. For example, in some countries, a mediated agreement can be registered with the court and enforced as a judgment, while in others, it can only be enforced through a separate lawsuit. Therefore, you should consult with a lawyer or a mediator before signing a mediated agreement to understand its legal implications and consequences.

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AJ Jakubowska

Family Mediator, Parenting Coordinator & Family Law Lawyer | SANE SPLIT Podcaster and Non-Influencer but passionate about several subjects
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Very important and valid points raised in the segment to the left. In my jurisdiction, which is Ontario, Canada, as a family mediator I work with counsel to ensure that an enforceable, written agreement is signed by the parties before mediation ends. That is not possible with self-represented parties, who need to get independent legal advice on any agreement they reach in principle, but when counsel are involved, we have the parties sign on the dotted line, so to speak, so there is no risk of the settlement unravelling. I wholeheartedly support the idea (suggested in this segment) that parties clearly understand what is takes to "seal the deal" at the end of a mediation. An investment of time and resources may be wasted if they do not.

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Matthew Parish

Executive Chairman @ The Foundation for Development | Post-Conflict Reconstruction | Ukraine Development Trust | Editor in Chief, Lviv Herald
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By adding a law and jurisdiction clause to it. Any agreement, mediated, negotiated or otherwise, should have a method for its enforcement and adjudication of any disputes as to whether it is being observed. You can of course designate the mediator as a sole arbitrator to resolve such issues, if both sides trust the mediator in question. Mediated agreements are more likely to be self-enforcing than some other sorts of agreement, but just like any agreement some provision must be made for enforcement or the new agreement may be of scant value.

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LaJuanda W. Griffin, Esq., MPH

Veteran | Conflict Consultant | Attorney | Negotiator | Dispute Resolution | Court-Appointed Neutral | Risk Mitigation | Employee Assistance Consultant | Domestic Relations Crisis Management
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As a family attorney, I often encountered situations where clients sought mediation to resolve family disputes, such as divorce or child custody issues. In these cases, the mediated agreement may cover critical matters like child custody arrangements, visitation schedules, spousal support, and division of assets. While the parties may reach a mutual understanding through mediation, it's crucial for my clients to understand the legal nuances. For example, in my jurisdiction in MS, a mediated agreement pertaining to child custody can be submitted to the court for approval. If the court approves the agreement, it can become part of the court's final order, giving it the same legal force as a court judgment.

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2 The clarity and specificity of a mediated agreement

A mediated agreement should be clear and specific about the rights and obligations of each party, the timeline and methods of implementation, and the consequences of non-compliance. A vague or ambiguous agreement can lead to confusion, disputes, and difficulties in enforcement. Therefore, you should avoid using general or subjective terms, such as "reasonable", "fair", or "as soon as possible", and instead use precise and measurable terms, such as "within 30 days", "by email", or "10% of the sales". You should also include provisions for resolving any potential disputes that may arise from the interpretation or execution of the agreement, such as mediation, arbitration, or litigation.

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AJ Jakubowska

Family Mediator, Parenting Coordinator & Family Law Lawyer | SANE SPLIT Podcaster and Non-Influencer but passionate about several subjects
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I agree with all the suggestions made in the segment to the left. The more detailed the mediated agreement, the better. The reality is that not infrequently, time pressure drives the format of the document. If the parties in a family dispute have been mediating actively for 9 hours straight, people are tired and attention spans shorten and yet, it is important to reduce the agreement to writing. So in Ontario, for example, we say in a mediated agreement that the parties are releasing each other from spousal support and as part of their separation agreement, which will incorporate the terms of the mediated agreement, they will sign a Miglin release. All family law lawyers in Canada understand what that means. It's a shortcut with a meaning.

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Rajinder Choudhuri

Senior Contracts expert, proven expertise in Contracts drafting, risk management, negotiation for Businesses. Led team of lawyers as Head (Contracts) for 12+ years for HCL and its Indian & foreign subsidiaries
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The Agreement should also specify that by virtue of terms of this agreement, either Party may submit a copy of the Mediated Settlement Agreement in any court of law and inform the Court that the Parties request a permanent halt to the ongoing litigation proceedings under reference number __________ which have fully resolved by virtue of Mediated Settlement Agreement, attached herewith for Court's record.

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3 The voluntary and informed consent of the parties

A mediated agreement should be based on the voluntary and informed consent of the parties, meaning that they have freely agreed to the terms without any coercion, fraud, or undue influence, and that they have understood the implications and consequences of the agreement. A mediated agreement that is obtained by force, deception, or mistake can be challenged and invalidated by the parties or the court. Therefore, you should ensure that you have all the relevant information and documents to make an informed decision, and that you have not been pressured or manipulated by the other party or the mediator. You should also review the agreement carefully before signing it, and seek legal advice if necessary.

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Narayanan H

Problem solver/preventer
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In addition to voluntary and informed consent, since the mediated agreement is an agreement, it should also satisfy the conditions of valid agreement under law such as valid consideration, valid object etc. i.e., the agreement must not be void under law.

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4 The compliance and cooperation of the parties

A mediated agreement is more likely to be enforceable if the parties comply with and cooperate on the terms. Compliance and cooperation can demonstrate the parties' good faith and commitment to the agreement, and can prevent or reduce the need for enforcement actions. Therefore, you should follow the agreement as agreed, and communicate with the other party in a respectful and constructive manner. You should also monitor the performance of the agreement, and document any evidence of compliance or non-compliance. If there are any issues or problems with the implementation of the agreement, you should try to resolve them amicably with the other party, or use the dispute resolution mechanism provided in the agreement.

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5 The external factors that may affect the agreement

A mediated agreement may be affected by external factors that are beyond the control of the parties, such as changes in the law, the market, or the circumstances. These factors may make the agreement impossible, impractical, or unfair to perform, and may require the parties to modify or terminate the agreement. Therefore, you should anticipate and address these factors in the agreement, and include clauses that allow for adjustment or termination of the agreement in case of unforeseen events, such as force majeure, hardship, or breach. You should also keep yourself updated on the relevant laws and regulations, and consult with a lawyer or a mediator if there are any changes that may affect the agreement.

By following these steps, you can ensure that your mediated agreement is enforceable, and that you can protect your rights and interests in case of a dispute. However, remember that mediation is not a one-size-fits-all solution, and that each case is unique and requires careful analysis and preparation. Therefore, you should always seek professional guidance and advice from a qualified mediator or a lawyer before entering into a mediated agreement.

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6 Here’s what else to consider

This is a space to share examples, stories, or insights that don’t fit into any of the previous sections. What else would you like to add?

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How can you ensure that a mediated agreement is enforceable?

1

2

3

4

5

6

1 The legal status of a mediated agreement

2 The clarity and specificity of a mediated agreement

3 The voluntary and informed consent of the parties

4 The compliance and cooperation of the parties

5 The external factors that may affect the agreement

6 Here’s what else to consider

Conflict Resolution

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How can you ensure that a mediated agreement is enforceable?

1

2

3

4

5

6

1 The legal status of a mediated agreement

2 The clarity and specificity of a mediated agreement

3 The voluntary and informed consent of the parties

4 The compliance and cooperation of the parties

5 The external factors that may affect the agreement

6 Here’s what else to consider

Conflict Resolution

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