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What is a Mediation Agreement?

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  • Written By: Sara Libby
  • Edited By: Lucy Oppenheimer
  • Last Modified Date: 01 December 2016
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A mediation agreement is a contract in which parties engaged in a conflict agree to try to settle their dispute out of court. This process uses the help of a neutral third party, also known as a mediator. Before getting started with the actual mediation, involved parties often sign a mediation contract which lays out the ground rules for the mediation. These ground rules might put a cap on the amount of time the parties will allow for the mediation and, usually, a confidentiality clause. The document also includes information such as when and where the mediation will take place. This mediation agreement which starts off the process, is usually modified at the end of a successful mediation to include the terms of the resolution as well.

Mediation is a type of alternative dispute resolution (ADR). Other types of ADR include conciliation and arbitration. Like conciliation, mediation is a type of conflict resolution that gives the disputing parties greater power in resolving their issues themselves. In addition to this greater decision making role in the conflict resolution process, mediation is also typically associated with lower costs and hassles than litigation.

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There are several types of mediation, including facilitative mediation, transformative mediation, and evaluative mediation. They largely differ based on the role that the mediator has. In facilitative mediation, the mediator does not offer his or her opinion of the conflict, but in evaluative mediation, he or she does. Regardless of the type of mediation, the mediator does not decide the outcome as a judge or arbitrator would. The mediator's role is simply to facilitate the process and try to bring the parties to some kind of resolution.

To help the mediation process, mediators often use mediation agreements at the beginning of the process to lay some ground rules. These agreements can be used in any type of mediation and are often used by spouses seeking a divorce. Neither party to the mediation can be forced to sign a mediation agreement, but once one is signed it can be deemed a legally binding contract. While the production of an agreement is often the mark of a successful mediation, not every successful mediation started off with such a formal agreement.

A typical mediation agreement allows each party to to have legal representation at the mediation. Mediators, however, usually are barred from providing legal advice or legal representation for either party during the process. The contract will also usually include an agreed-upon rate or fee for the mediator. A code of conduct for the mediation might also be spelled out to help get the parties to engage honestly and openly, thereby ensuring a smooth process.

A framework is typically built into the mediation agreement outlining the key and relevant points in dispute, emphasizing the mutual interest of both parties to reach a resolution, and including a general statement that resolution has been reached. Once a provisional solution has been reached, it will be written into the mediation agreement, along with any necessary revisions. Finally, both parties sign the document.

Since both parties work to clearly define the steps necessary to resolve the conflict, mediation agreements are usually more collaborative and mutually beneficial than a finding made by a court officer. Settlements reached during the mediation process might need to be approved by a court, or altered to adapt to local laws, customs and circumstances. In the worst cases, a mediation agreement might have to be presented in court to be enforced, if one of the parties fails to live up to his or her end of the agreement.

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