Is An Agreement Reached In Mediation Binding?

March 6, 2009

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.

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