So you think you are on the home stretch having endured a marathon mediation session and the parties have reached heads of agreement they think they can all live with - now the parties are now seeking to formalise the agreement in writing.
You write down the parties names on the top of the agreement and in dot points you write down the terms of the settlement whilst being careful to use their words as much as possible.
Then comes the question from one of the parties - "is this agreement we are drafting legally enforceable?"
As this is a legal question - I concede my response is a bit heavy
So what does "legally binding" mean and what does it mean in a mediation sense? when the actual session is supposed to be confidential
She short answers is.....mediation agreements may be considered in the very least be construed as persuasive in Court - so what does that mean? Read on.... and please - consider independent legal advice....
If you’ve ever signed a lease, gotten married, installed a program or an app on your laptop or device, you’ve most likely to have entered an agreement. These agreements are often called legally binding agreements, as they define the terms undertaken during a contract.
Legally binding simply means that one agrees with the terms under a written or spoken contract to behave in certain ways. The terms and conditions of such a contract can either prohibit or define appropriate behavior under the agreement. Violation or not performing to the terms in a legally binding agreement can either void the contract, or cause legal repercussions
In common law there are 6 fundamental principles needed for a contract to be legally binding.
- Agreement - where one party makes an offer and the other accepts it;
- Consideration - where one party gives something in exchange for something from the other party;
- Intention - where both parties intend to abide by the contract;
- Capacity - where both parties are mentally capable of understanding a contract;
- Genuine consent - where both parties agree to the contract of their own free will; and
- Legality - where all of the parts of the contract are legal.
Point number 1 shall be expanded to explain what needs to be considered or included as part of a mediation agreement:
- is there an obligation to provide a copy of the mediation agreement or report under the legislation the mediator is operating under
- are all the parties with the authority to settle present – if not is there a written authority to settle must be sought before a mediation agreement is drafted
- The terms of the agreement should be captured under a heading such as “mediation agreement form”
- The wordings should have minimum legalise instead of using “in consideration for the performance of the said …blah blah” use simple dot or numbered points in chronological order.
- PA will mow the lawn every Sundays at 9am
- PB agrees to pay $20 for the completion of the lawn mowing
- If PB is unable to mow the lawn at the agreed time PB must contact PA by email
It is important that the wording must be agreed to by all parties and must make logical / chronological sense. Have a look at how a statement of claim or a writ is drafted. Needless to say, illegal or unenforceable agreements my be void or voidable in Court (ie agreement to divide proceeds from a illegal drug sale). Encourage parties to seek legal advice.
Generally Judges appear to consider parties who breach their own agreement in a dim light – a fair bit of courage for a party to argue that in front of Judge:
“yes your Honour - I did attend mediation and reach an agreement in good faith with the other party – but I seek to rescind the agreement”
- An option to consider is to seek the Mediation Agreement converted into a Consent Agreement at the Court – also if applicable; the onus is on the applicant to file a Notice of Discontinuance if there is a Court matter on foot. Again encourage parties to seek legal advice.
- Whilst the contents of the mediation may not be admissible under the legislation you are operating under. If there is a requirement to provide a report on the outcome ensure the applicable legislation mentioned in the mediation agreement
- A clause in the Agreement form should be included so the intent of the Mediation Agreement is clear “This Mediation Agreement may be used as evidence in Court”
The Enforcer (1976) with Clint Eastwood as Dirty Harry
Capt McKay: $14,379.
Harry Callahan : How can that be?
Capt McKay : You want an itemized account? You took out two front doors, one front window, 12 feet of counter. Plus damages to the stock, plus one city vehicle totaled. Not to mention three hostages in the hospital, all of whom will probably sue the city.