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What can be done to ensure a mediation deal is enforceable?

At times, it can seem the law defies logic. Take the following scenario as an example. You and another party are in dispute over some issue. Maybe you have a difference of opinion over contract terms or a construction project. Maybe you need to resolve a parenting issue in the wake of a divorce.

Regardless, you undertake mediation with hopes of reaching a timely and cost-effective settlement. Agreement is reached. The paper work is drafted and signed. The next day the other side's attorney calls to report a change of heart. Does that make the mediation agreement unenforceable? If it is, is there something that could have been done to prevent things from falling apart?

Achieving confidence with mediation

We have noted in some previous posts that there can be conditions under which mediated deals might not be enforceable. Indeed, Pennsylvania law regarding confidentiality of mediation documents includes a provision that allows an exception to the privilege if the settlement includes a clause that states the document is "unenforceable or not intended to be legally binding."

Readers might now be asking, who would enter into a mediated agreement if it wasn't to be legally binding? It is possible to imagine circumstances in which the purpose of mediation is not overall settlement, but merely identifying steps two sides will use to resolve pending, more-granular issues. Still, if enforceability is desired, there are ways to achieve that.

  • Have all necessary players at the table. All it might take to scuttle a settlement that you want to be binding is to have one person with the necessary authority absent from the process. Before a mediation session ends, be sure to have written consent from all the right parties.
  • Summarize the deal in a memorandum of settlement. Another thing to do before the session breaks up is to make sure that the terms of the deal are put in writing and signed by all parties.
  • If the memorandum is to be binding, include a clause to that effect. As noted earlier, there could be situations in which more negotiations are expected to be held. Including an express statement making the memorandum binding would then be wise.

These suggestions are not intended to be comprehensive, simply important points of reference. To be sure of what any particular form of alternative dispute resolution might deliver, it's always best to consult with experienced legal counsel.

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