What is a Mediation Agreement?
Put simply, an agreement to mediate is an agreement between the parties that they will attend mediation and will use their best efforts to resolve their issues, unless they agree otherwise at that time. For example, in divorce, if an agreement cannot be reached at that time, then generally, at least in Georgia, mediation ends, and it is thus up to counsel to schedule any follow up .
Mediations are different for every person. The parties create their own agreements based on their own particular circumstances. The solutions set out in an agreement to mediate can include anything from how to manage the joint custody of a child to how to divide social security benefits. Ultimately, the scope of topics handled depends on the needs of the disputing parties. A sample mediation agreement can be found here:
Critical Elements of a Mediation Agreement
A typical mediation agreement may contain the following key elements:
I. The Parties
A. Identification of the parties and their counsel, if any.
B. Name of the Mediator and confirmation that the mediator’s services are provided pursuant to K.S.A. 5-514 et.seq., and that the Mediator is entitled to the protections of that statute.
II. Benefits of Mediation
The parties appreciate and understand the benefits of mediation and acknowledge that they attend the mediation conference fully expecting to arrive at a compromise or resolution of the dispute. They further acknowledge that they will be bound by the terms of the settlement agreement, and that the agreement will be documented in writing by counsel, if represented, and signed by the parties or their counsel.
III. Confidentiality
The mediator and parties acknowledge that the mediation and all communications, statements, or conduct during the process are confidential. The mediator will not be called upon to testify regarding any aspect of the mediation nor will any communications, statements, or conduct during the mediation be admissible in any court or administrative tribunal.
IV. Scope of Mediation
The scope of the mediation shall be limited to the issues defined in the attached proposed agenda. While the scope may be modified with agreement of the parties, the mediator will not independently expand the scope except with the agreement of the parties.
V. Authority to Compromise Dispute
The parties acknowledge that each has the requisite authority to commit to a settlement of the dispute. Parties who are corporations should bring someone to the mediation who is authorized to settle, or have authority delegated before they arrive. Parties who are individuals should confer in advance of the mediation and be prepared to authorize their lawyer to settle if required during mediation.
VI. Expenses, Fees, and Payment
The parties agree to share equally the expenses and fees of the mediator, and to arrange payment prior to, or at the time of the conference. In voice mail, please provide addresses and phone numbers and specify if you are representing only yourself or others.
VII. Choice of Law
The parties agree that Kansas law applies.
Advantages of a Mediation Agreement
For those in a conflict who want to stay out of court or have lost hope of working with the other in some amicable way, mediation has become their saving grace. More and more people see the benefits of mediation over litigation or arbitration. People in mediation have reported a level of satisfaction with the process and its outcome far above that of even arbitration. In a study conducted by the United Nations in 2002 to analyze the impact of the UN Peace Mission in the Central African Republic, more than 80 percent of the parties said that the peace process was sensitive to their needs. In nearly every way, the processes of mediation and fact-finding were given higher marks than those for litigation, conciliation or fact-finding.
Given that the process of mediation depends upon the willingness of the parties to work together, the primary benefit is that unlike other forms of conflict resolution, the mediation agreement is signed by the parties themselves, not a judge. This means the outcome is more likely to be satisfactory to them and they are more likely to stick to a negotiation because they had a hand in the final wording of the deal. A bonding effect is created by designing the system or instrument to meet the parties’ specific concerns and accommodating the desires of each.
As a recent Wall Street Journal article pointed out, finalizing a dispute through mediation takes much less time and is much less costly than going to court. Costs of settlement agreements are significantly lower than the expense of arbitration, which can run to $40,000 a day or more. One of the main reasons for which parties cite the use of mediation is to save money. The fact that so many companies and corporations use mediation is a strong indicator of the value it brings to those who practice it.
The yearly costs of a lawsuit can often amount to $2,000 to $6,000 for small cases and firm/medium sized cases can pay virtually any amount. With mediation, the costs to the parties can be reduced to the price of the mediator alone, usually between $250 and $400 per hour. Given that most mediators spend about six to seven hours on the case, the cost approaches the $2000 figure. Instead of spending a company budget on the judge and courtroom, the cost is shared by the mediator and the parties themselves, thus bringing costs down.
Not only is the goal to bring down the price of resolving a dispute, but this can also be done quickly. Most cases can be settled in one long morning. There is no long trial to plan for, system of jury selection or any motions to file. Just secure the parties to sign a mediation agreement.
How to Write a Mediation Agreement: A Step-by-Step Approach
A mediation agreement is a written contract that shows the terms and conditions of the mediation process. It keeps each party on the same page during the session so that both groups can focus their attention toward resolution, and it can later serve as a binding legal document if either party breaks the terms. Below, we walk through the types of agreements you can use, as well as the steps to create your own.
There are two common types of mediation agreements:
General Agreement
A general mediation agreement is a convenient way to negotiate terms for a one-time event. It can be used for any type of mediation session, regardless of the type of issue or parties involved. Here are the basic components:
Divorce Mediation Agreement
This type of mediation agreement is more specific in scope – it’s only intended for divorce cases. A divorce mediation agreement is signed in-house and contains all of the divorce terms. For this reason, this type of agreement is often referred to as a marital settlement agreement or (as is the case with a number of other distinctions) as a marital separation agreement.
If one of the parties breaks the mediation agreement, the non-breaching party has to prove the terms of the mediation agreement to the court in order to receive any relief. Courts are generally inclined to enforce mediation agreements. In fact, most courts require parties to attend mediation before they will schedule a final hearing for divorce.
A general mediation agreement is often all you need for a simple, straightforward issue. But for a more complex topic – such as divorce – a divorce mediation agreement may be preferable.
While every mediation situation is different, there are some general steps that you can follow to create your own mediation agreement:
Determine who the other party or parties will be in the agreement.
Outline what issues or problems you are currently facing and need to solve. You can include everything from the mundane to the emotionally-charged. The goal is to make the terms of resolution clear.
Outline your terms for resolving the issues listed above. What resolutions are you looking for? What does a successful mediation session look like? Would you prefer that everyone make compromises, or is winning a top priority for you?
The mediator should help you to create an agreement that is fair to everyone involved.
Read the mediation agreement out loud.
If you are satisfied with the terms, have both parties sign the document. This step is optional, but we advise doing it to avoid knowing whether it’s legally binding.
Store a copy of the completed mediation agreement in a safe place.
Any time you enter into a new contract, it’s important to understand the terms and act in good faith. No party should go into the process expecting to ignore the agreement or to renege on their terms.
Common Errors in Mediation Agreements
Unfortunately, there are a number of common mistakes that many mediators and lawyers make when drafting a mediation agreement. All of these mistakes can be avoided with some attention to detail:
- Try not to use a generic mediation agreement. The parties often enter into an agreement based upon a pre-printed mediation agreement. Many mediators and lawyers select from their own library of "standard" mediation provisions. This may be "easier" – but it is not appropriate and you should never depend on old language. On top of that, many of the pre-printed language is outdated and incorrect. You must write every mediation agreement in a way that is specific to the situation before you. Not having the terms worked out while drafting the agreement can be troublesome. More often than not, the issues are resolved but the specific language is not agreed to. This is an invitation for disputes later. Do your homework and explore the terms yourself. Ask for the terms to be discussed at least a couple of days before the mediation if there are any concerns. Don’t wait till the night before or the morning of the mediation to have a discussion about the matters with opposing counsel. Consider leaving time at the end of the mediation day to draft the agreement if its focus is on resolving most of the terms but there are a few details remaining. It is also acceptable to leave the drafts with the parties. You can email them to counsel so they can review it overnight. That is better than dictating the terms into a tape recorder.
- Pay attention to the spelling of the parties. Make sure the names are correct. Are they known as "John Smith" or "Jr."? Was "William" spelled "Willie" or "Wm"? Do they go by Mr. or Miss? Did one of them change his/her name? Make sure the basic details of the parties are correct.
- If you are saying someone is representing someone else , be clear in your language. Don’t say, "X will be represented by X’s attorney." Be clear that X is represented by Y’s lawyer but that X is X, not Y. For example, "X, John Smith, will be represented in this matter by X’s attorney, Jill Jones of Jones & Jones."
- Make sure the gender is correct. If describing "the party", it might say "he", "she" or "it". If using genders, make sure you use them correctly. Sometimes it will be "the parties will share a mutually agreed-upon crop of crops," or "each party and its heirs, executors and assigns."
- Use "will" and not "shall", "must", "hereinafter"; even if that is what is used in the form mediation agreement. ""Will", is the future tense of "to be", meaning that it is going to happen. Use "shall", "may" or "might" to set forth goals or standards.
- Punctuation is important. Leave a space after the ". " and after the "; " and after the ":". Use commas and dashes appropriately. Putting a dash in two different phrases means "the agreement is effective for the first part of the first phrase, then the second part of the first phrase and the first part of the second phrase" when it is meant to mean "the agreement is effective for all of the first phrase and the whole of the second phrase". Always review for grammar and punctuation.
- More than once I have had to change money figures at the end of the mediation. As I am typing away, I try to check each group of "zeros" as I go along. Be aware of the importance of zeroes. That is a lot of money if you make the error of putting one too many "zeroes" in the document.
Example of a Mediation Agreement
When a collection of parties have agreed to enter into a mediation agreement, they should not have to pay a large fee to an attorney to draft one for them. Instead, an Internet search will lead the reader to many examples of a sample mediation agreement template. From those templates, the parties can modify and choose language that best fits their needs and desires. One such agreement is Mediations Reported in the Civil Procedure Rules at 30.3(1), but there are others available online also.
Formatting a sample mediation agreement template may also be a simple task. Many times, a party just reproduces the exact language from the template agreement they have found, while other times, that same party will choose and pick certain sections of sample mediation agreement templates to come up with an even more neutral and fitting agreement to move forward with. The former is okay, but the latter is recommended, for it shows the thought process and consideration of what types of controls and parameters must be included in the mediation agreement template so that all parties have a clear understanding before entering into mediation.
Legal Aspects in a Mediation Agreement
Various legal considerations must be kept in mind when drafting a mediation agreement to ensure that the agreement is enforceable and final and that it does not contravene any applicable laws or regulations. For example, certain statutory requirements must be satisfied depending upon the nature of the dispute being mediated, such as the statute of frauds, the statute of limitations, the incorporations by reference doctrine, and the non-waivable rights . An enforceable settlement agreement must satisfy the statute of frauds. The statute of frauds requires a writing signed by the party to be charged with the settlement agreement. Guardianship and mental incapacity statutes should also be checked to confirm that the parties, or their representatives, have the authority to enter into the settlement agreement.