Caldwell & Kearns, P.C.
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Spelling out an effective mediation agreement

In our last post, we spoke a bit about some of the factors involved in an effective mediation process. Among these factors, we noted, are: ensuring that all parties have a proper understanding of the purpose of the mediation process; working with a mediator who is able to facilitate an effective discussion; getting the timing of the process right; and selecting representatives who are right for the task of mediation.

Here, we want to discuss the importance of setting down an effective mediation agreement on paper. This phase of the process is of particular importance, because it memorializes the outcome of the mediation process in a written agreement on which both parties can rely. Clearly setting out the terms of the agreement is important so that both parties know their obligations and rights, and also so that having the agreement enforced does not present the possibility of legal ambiguity. 

Mediation agreements, to be effective, should address both the intent and the terms of the agreement. Aspects of the agreement which involve specific time frames and deadlines need to be unambiguous. The consequences of failing to abide by the terms of the agreement should be clearly spelled out.

Mediation agreements can differ in style, depending on the wishes of the parties, but experts say that, as a minimum, they should lay out in unambiguous language the basic points of the settlement. Agreements which contain non-binding elements should clearly distinguish those from the binding elements.

In all of this, it is important for parties to work with an attorney who has an experiential understanding of what works and what doesn’t. Doing so ensures that the hard work put into the mediation process pays off in a well-written and properly executed agreement.

Source: Wrightslaw.com, “Seven Steps to Effective Mediation,” Diana Santa Maria, Accessed Jan. 21, 2015. 

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