Is An Agreement Reached In Mediation Binding?

Most mediation participants engage in mediation with the hope of obtaining a binding agreement. Therefore, at the end of the mediation, the mediator assists the parties in committing their agreements to writing in a binding format. The agreement, if it includes the proper information, will be a binding contract, enforceable in Court.

A good mediation agreement will include:

• The names of the parties and date of the mediation.
• A brief statement of the nature of the dispute.
• Agreements on how the parties will relate to each other in the future, and what responsibilities each party holds.
• The date and signature of the parties and the mediator.

A word about signing: the signer should be of the age of majority, have the mental capacity to sign and have the authority to sign. A party signing on behalf of an organization should indicate that capacity with the signature. The mediation participants cannot bind a person or organization who was not party to the mediation or who did not sign the agreement.

A good agreement should also meet the S.M.A.R.T. test: Specific, Measurable, Action- oriented, Reasonable and Timely. The writing in a mediated agreement should be simple (no legalese), clear, and concise. It should be balanced and create mutual obligations, so that both parties feel that they are giving and getting something.

In addition, the agreement should also spell out whether it is resolving just some or all of the outstanding issues. Finally, mediation agreements should also include an agreed to method to resolve future conflicts.

While the mediator generally acts as a scribe, it is the parties that generate the language. Mediation participants who feel that they “own” the agreement are much more likely to comply. As always, a participant who has any questions about the legality of an agreement should consult with an attorney.
Alona M. Gottfried is a mediator and attorney in Arizona. She can be reached at: 480-998-1500 or Alona@SGLawAZ.com.

This Article is designed to be of general interest and should not be considered legal advice. The specific information discussed may not apply to you. Before acting on any matter contained herein, you should consult with your personal legal adviser.

Who Can Afford To Litigate In This Economy?

When litigation can cost tens to hundreds of thousands of dollars, who can afford to litigate in this economy?  Okay, who can afford to litigate other than the bailed out banking institutions?

Conflicts do not generally dissipate when money is short.  In fact, more conflicts tend to arise when money is short.  It has been said that money issues is one of the top causes for relationship problems.  Further, with a bad economy, more people are failing to comply with contractual terms, such as repaying a loan.

The bad economy has sent companies and individuals alike back to the drawing board to look for new ways to do things.  For example, people are cutting coupons, and companies are cutting employees.

Perhaps the economy is the impetus people /companies need to try mediation instead of litigation.  Mediation is generally a much less expensive process than litigation.  Instead of paying two attorneys and often multiple experts for their assistance over a period frequently lasting a year or more, both parties pay one mediator who can often help resolve the conflict in a couple of days or less.

Mediation makes good sense, especially when you are short on dollars and cents.

Frequently Asked Questions About Mediation

What is mediation?

Mediation is a way to resolve disputes in a prompt, efficient and cost effective manner.   Mediation allows participants to maintain control over their lives and, in a dignified and satisfying way, clarify issues and resolve conflicts. Mediation promotes future cooperation, not continued conflict. In mediation, participants themselves, with the mediator’s impartial assistance, resolve their own dispute, seeking fairness and the maximization of benefits. Family, business, property, employment, organizational and other disputes can be effectively mediated to a fair and constructive resolution that participants believe in and with which they will comply.  Mediation offers the opportunity for people or groups in conflict to move forward with their lives and businesses in a positive manner.
Mediation is the fastest growing alternative to litigation.  Many courts around the world require parties to participate in mediation prior to litigation because of mediation’s exceptional effectiveness.

How does mediation work?

A neutral third party (the mediator), helps the parties find solutions to conflicts that are optimal for both parties by using conflict resolution skills.  The process is confidential to encourage all parties to feel comfortable.  A successful mediation ends with a binding agreement of the parties.

What happens during mediation?

Generally, the participants first meet together as a group, and the mediator explains what will happen, and the ground rules.  The participants sign a confidentiality agreement.  Where appropriate, each participant gives a brief statement of the conflict.  The participants will either stay in the same room together, while options are explored, or the mediator will put the participants in different rooms.  The mediator may meet with each party separately in what is called a “caucus.”  Once the parties have reached an agreement, the parties will draft a binding settlement agreement together.

What are our chances for success?

The good news is that most mediations are successful.  The mediation should include a skilled mediation and parties that are willing to be reasonable, forward thinking and, sometimes, creative.

What if we don’t reach agreement?

In mediation, all discussions and materials, with very few exceptions, are confidential. If no mediated agreement is reached, evidence of the mediation discussions, mediation materials and any draft mediation resolutions will not be admissible in any court or other adversarial proceeding.

What disputes are appropriate for mediation? Mediation is appropriate for most disputes.  This includes family law disputes (divorce, paternity, non-parent rights, modifications .. . .), employment disputes, property disputes, business disputes, personal injury and malpractice disputes among other types of disputes.

When is the best time to mediate a dispute?It makes sense in most cases to mediate as early in the dispute as possible – before animosity increases and before the parties put substantial time, money and energy into the conflict.  However, the participants can mediate at any point.  Participants can mediate with or without pending litigation.

Do I have to be in the same room as the other party?

Generally, mediation starts with the parties and the mediator meeting together and exchanging a general understanding of the conflict.  The parties often then break up and meet with the mediator one and a time.  The mediator may meet with each party dozens of time during the course of the mediation process.

Can I bring an attorney?

In some mediation discussions, attorneys are present and represent the parties. In other mediation discussions, attorneys are not present, but are available as an outside resource for consultation. Participants need to decide how actively involved, if at all, they would like legal counsel to be.  Participants may also choose to use experts, such as financial experts, child specialists, appraisers and counselors.

Alona M. Gottfried is a mediator and family law attorney in Arizona.  She can be reached at: 480-998-1500 or Alona@sglawaz.com.

This Article is designed to be of general interest and should not be considered legal advice. The specific information discussed may not apply to you. Before acting on any matter contained herein, you should consult with your personal legal adviser.

How to Mediate Your Domestic Dispute

How do you divide assets at the end of a relationship when you were never married?  This is a problem for countless gay people, who cannot marry, and other people who chose not to marry.  According to the U.S. Census bureau of 2000, over five million Americans are living in a “unmarried-partner household.”  The relevant portion of the chart is reproduced below:

UNMARRIED-PARTNER HOUSEHOLDS
Total	5,230,703	100.0
Male and female		87.4
Both male	332,645	6.4
Both female	326,066	6.2

If you are married, the Courts, at least in Arizona, will kindly assist you in dividing assets in the divorce process.  The Courts will also decide if one person needs some financial support at the end of a relationship (spousal maintenance or alimony) and make amends for community waste (one party destroying, wasting or hiding assets).  Further, the Courts may allocate the cost of litigation where there is a disparity in income or where one person has taken unreasonable positions.  Finally, the Courts will protect people going through a divorce from such things as harassment and the destruction of property by issuing a Preliminary Injunction, prohibiting such conduct.

What do you do if you were not married and you cannot agree on how to divide assets?  You can file a civil action to partition property in both owner’s names.  You can also file an action or contact the police to try to recover your separate property that your former partner took, if you can prove ownership.

Or, you can go to mediation.   Mediation is a non-adversarial process where people experiencing conflict can resolve their disputes with the aid of a neutral mediator, trained in conflict resolution.  In mediation, the parties enter an agreement to discuss their issues in a confidential setting.  The mediator works with the parties to arrive at mutually acceptable solutions.  The parties are not restricted to solutions that may be available in Court.  For example, unmarried parties could agree to a payment from one party to the other, to help that party get back on his/her feet.

The mediator can work with the unique dynamics of a particular relationship.  For example, some people may feel better sitting in separate rooms while discussing assets.  Others may succeed sitting all together with the mediator.  Some people want to complete the mediation at one sitting.  Others want to take time and complete the mediation over a number of sessions.  Experts can also be used to provide information, such as information about the value or most advantageous division of property.

Any agreement reached at the end of the mediation can be binding, if the parties want it to be.  The mediator can help the parties reduce the agreement to writing and give it the same legal effect as any other contract between parties.

Mediation is highly successful (some quote a 90 percent success rate), empowering, confidential, and often quicker and less costly than other options.  Mediation is a good option for almost any type of conflict, and it may well be the only option for some domestic disputes.

Alona M. Gottfried is a mediator and family law attorney in Arizona.  She can be reached at:480-998-1500 or Alona@sglawaz.com.

This Article is designed to be of general interest and should not be considered legal advice. The specific information discussed may not apply to you. Before acting on any matter contained herein, you should consult with your personal legal adviser.