What is mediation and who is involved?
Mediation is an alternative dispute resolution process where the parties meet with a neutral third party to resolve any disputes and come to an agreeable solution. It is important to know that mediation is very common within the course of litigation, especially during family law proceedings. A court may require the parties to attend mediation prior to a divorce hearing, modifications of parenting time or child support. The mediation is led by a mediator, who is an outside party hired by the parties to mediate the case. The mediator’s role is to assist the parties in coming to a swift resolution and mutual agreement by guiding the parties and assisting when necessary. The mediator will not come to a resolution for the parties or render a verdict in favor of one side. All decisions must be mutually agreed upon by the parties. The benefit of attending mediation is that mediation is a non-binding process. This means that parties cannot force the other to enter into an agreement or resolution. Rather, the parties must voluntarily agree to accept any resolutions.
Is Mediation legally binding?
If the parties are able to come to an agreement on the subject matter being mediated, there is only one way for the agreement to become legally binding. In order for the mediation agreement to become legally binding, the parties must reduce the agreement to writing through a contract or mediation agreement. Once the terms of the agreement are written and signed by both parties, it becomes a legally binding contract. Like any legally binding contract, either party has the right to enforce this contract against the other party. The most common issues that are mediated in family law causes are: separation agreements, child custody, visitation rights, child support payments and maintenance payments. Additionally, in family law cases, if the mediation is court ordered and the parties are able to come to a resolution, the agreement is filed with the court and reduced to an order by the judge. This gives the parties the weight of a court order as well as the mediation agreement contract.
When is a mediation agreement not enforceable?
In rare cases, the mediation agreement is not enforceable and may be overturned. In most cases the parties do not want the agreement to be overturned because the terms are generally agreeable. As well, each party put significant time and effort into mediation. Even though the mediation agreement may be a contract of mutually agreed upon terms, it is still a contract and subject to being set aside for the following reasons: fraudulent misrepresentation, mental incapacity, undue influence or duress, mistake, or illegality. If you have a mediation agreement and believe one of these factors may apply to you, it is best to contact your attorney and discuss your concerns with them.
Consequences of breaking a mediation agreement:
The consequences for breaking a mediation agreement vary, depending on the agreement. Because this agreement is a binding contract, the non-breaching party has the right to seek enforcement of the agreement against the breaching party through court proceeding unless your agreement states a different form of enforcement.