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Looking at the enforceability of mediation agreements, P.2

Last time, we began looking at the enforceability of mediation agreements. As we pointed out, the law on this matter varies from state to state and between federal jurisdictions, but courts generally apply the rules of contract law. Under contract law, there are various grounds on which contracts can be defeated or limited, and we mentioned some of these last time: duress, coercion, lack of agreement, fraud, misrepresentation, and mistake.

There are certain steps that parties to mediation should take to ensure their agreement is effective after mediation ends. Depending on the law governing mediation in any particular jurisdiction, some of these suggestions may already be explicitly required. 

The first suggestion is to record all the material terms of the agreement in clear and definite language, making the enforceability of the agreement explicit, and ensuring that the document(s) are properly signed. A written agreement is generally going to be more effective in court than an oral agreement, so get it in writing.

Another suggestion is to include a statement of the material representations on which a party relied in making the agreement. If all such representations are explicitly included in the text of the agreement, it is much easier to disprove allegations of misrepresentation after the fact. Also helpful would be to have any secondary documents that go with the agreement ready to go at the mediation itself rather than after an agreement is signed. Such documents might include a release or an apology. Whatever the case may be, giving both parties the chance to view these documents before signing the agreement can help avoid later disputes.

Another potentially helpful precaution is to include with the mediation agreement a confirmation by both parties that they are competent, not under duress or coercion, that they understand all the terms of the agreement, and so on. Such recitals help to establish that the parties have no basis for claiming they did not understand the agreement or that they were pressured to sign it.

Of course, anybody who goes through the mediation process does well to work with an experienced advocate. The role of an advocate in the mediation process is different than in litigation, but it certainly help to ensure everything goes correctly and the one’s interests are protected in any agreement that is struck. 

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