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Mediation is a form of alternative dispute resolution (ADR) that allows the parties to a dispute to present their claims to a neutral third party, known as the mediator, who will try to help them reach an agreement. Once the mediation is over, how can one party make sure that the other party or parties hold up their end of the agreement? The best way to enforce a mediation agreement depends largely on the circumstances in which the mediation took place. If the mediation occurred as part of a lawsuit, the court can enter an order that encompasses the agreement’s terms. If it was not part of a lawsuit, then the written agreement will be enforceable as a contract.
What Is Mediation?
In general, mediators are trained in conflict resolution which includes identifying areas in which parties to a dispute have common ground and encouraging them to resolve their differences. The goal of mediation is to come to an agreement that everyone can live with even if they do not particularly like it.
Mediation is a less formal procedure than arbitration which resembles a trial in many ways. While arbitration almost always results in a decision by the arbitrator, mediation is not guaranteed to result in an agreement. If a party to the mediation walks away, then the remaining parties cannot mediate any issue that involves that party. If the parties have not reached an agreement at the end of the period of time allotted for the mediation, they can either arrange for more time with the mediator, or they can walk away and pursue other avenues such as litigation.
What Is a Mediation Agreement?
If the parties are able to come to an agreement with the mediator’s help, they should reduce their agreement to writing while everyone is still in one place. The written agreement might not look like a formal legal document. It might even be handwritten.
Under California law, anything said during mediation is confidential. Documents prepared for a mediation, or during the course of a mediation, are also confidential. Neither are admissible as evidence in court. Therefore, the written mediation agreement should be prepared at the end of the mediation, and should expressly state the parties’ intention for it to be admissible as evidence of their agreement. Each party should sign the agreement. So, the signature of an attorney or other representative is not enough to indicate that a party has accepted the agreement.
Enforcing Mediation Agreements
If the mediation took place as part of an ongoing lawsuit, California law establishes a procedure for the court to enter an order or judgment based on the terms of the agreement. It must be in writing, signed by all parties to the lawsuit, and admissible as evidence. Once the mediation agreement is made into a court order or judgment, it can be enforced like any other court order, such as through a contempt motion or a levy. Also, the parties can ask the court to retain jurisdiction for future enforcement proceedings, if necessary.
If mediation was not part of a lawsuit, but rather an effort to avoid litigation, the agreement should include provisions for enforcement under contract law. Enforcement will likely require a lawsuit for breach of contract.
Salar Atrizadeh, Esq. is a business attorney who has advocated for his clients’ interests in courtrooms and conference rooms for over a decade. Please contact us online or by calling our law firm to schedule a confidential consultation.