Is the agreement reached in mediation enforceable?
UPDATED: February 20, 2013
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Whether an agreement reached through mediation is enforceable depends on the situation. At the end of the mediation, the lawyers for the disputants will draw up an agreement that embodies all the main points of what has been agreed to. Both parties will sign this agreement and the dispute is ended; it is the responsibility of both parties to adhere to the terms of the mediation agreement. After the mediation agreement has been decided, the lawyers may draw up a more formal document that can be filed with a court in order to dismiss the case. If no case has been filed with a court, the lawyers will draw up a contract that binds both parties to the agreement. Recently, experienced lawyers have begun bringing their notebook computers to the mediation so they can generate the final document right there at the end of the mediation.
Consequences of Breaking a Mediation Agreement
A mediation agreement document is a contract. For out-of-court mediation, it's a standard contract; if either side does not honor the contract, then the only means the other party has is taking the action to court. When this happens they will sue not only for the original disagreement, but also for breach of contract. This means that whoever broke the contract would have to pay damages for going against the contract. Furthermore, courts that favor decisions reached by mediation will typically turn the original civil mediation agreement into their own ruling, usually with some terms added in for enforcement purposes.
If the mediation was court ordered, then the agreement is filed with the court as the court’s judgment and the case is dismissed. In these cases, the agreement is a legally binding and enforceable contract. The party that breaks this agreement could be held in contempt of court, pay some heavy fines, and possibly be placed under civil arrest.
Attorney’s Role in Mediation
The bottom line with mediation is to always have your attorney present during the mediation process. Do not hesitate to ask for a recess to speak with your lawyer before you commit to anything. If the mediation does not seem agreeable to you and you feel the outcome is unfair, then elect to end the mediation session instead of agreeing to the conditions. Remember that in mediation the idea is that both sides give up something in the interest of resolving the problem. If the mediation agreement sounds like you’re giving up too much, discuss it with your lawyer and ask whether the outcome is the best alternative.