The Agreement

Mediated Agreements

Also known as Mediation Agreements, Settlement Agreements, Mediated Settlement Agreements, Memoranda of Understanding, Notes of Understanding or just The Agreement/ Agreement.  Whatever we call it, this is the document which sets out the nature and terms of the agreement reached by the parties. 

The Mediated Agreement:

  1. is usually drafted by the Mediator,
  2. cannot include anything which doesn't have the full agreement of all parties,
  3. is best dealt with in detail at the Mediation while the parties are present,
  4. will be agreed and signed by the parties,
  5. will not be legally binding unless made so through a court process or being drafted into a contract by solicitors,
  6. can be as simple or complex as the parties need to effectively resolve the dispute,
  7. should be drafted in straight-forward terms and avoid legalese,
  8. can include all terms of importance to the parties no-matter how unusual or minor.

The legal status of a Mediated Agreement depends on a) type of process and b) intention of parties. Court related mediation will often result in a binding outcome whereas mediation independent of any other process will be as legally binding as the parties want it to be.  The parties can agree for lawyers to be present at the conclusion of the Mediation so that the agreement can be appropriately drafted and witnessed to be a binding contract.

In family mediation the outcome will usually result in a 'Memorandum of Understanding'  which is signed by just the parties and non-binding which they will then take to their solicitors to have incorporated into Deed of Separation / Consent Order for Judicial Separation or Divorce.

In some contexts (personal disputes, community disputes) it is not unusual for agreement to be an Understanding and not legally formalised.  It is always important to remember that while in some circumstances parties wish there to be legal formality, compliance in relation to Mediated Agreements is furthered by the fact that the outcome has been agreed rather than by any legal penalty.

What if I do not reach an agreement?

If an agreement is not reached there is no penalty or downside - the parties retain all options previously available to them including;

  • leaving the matter unresolved and move forward.
  • arranging another mediation session and try again to reach resolution.
  • identifying more information of input which may assist a further attempt to mediate.
  • trying another ADR process such as arbitration.
  • 'going to law' or, if the matter is already in court, proceed to hearing.

The parties have the option to continue with the mediation sessions or discontinue them. In a court-referred mediation case, the mediation is simply reported as unsuccessful and the case moves forward in the courts.

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The MII accredits mediation training courses which meet set training standards. The following training programmes have been recognised as MII approved training programmes.

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The purpose of CPD is to ensure that Mediators keep their knowledge and skills up to date for the benefit of users of their service and for their own personal and professional development.

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