A disturbing trend is developing wherein people have spent hours, days, and sometimes weeks discussing and negotiating a settlement to resolve their dispute. Then, no sooner had they signed a mediation settlement agreement and they had reasonably believed that everything was going well than they were served court papers. The mediation settlement agreement has been challenged. And on what grounds? “It is not my agreement (non est factum). I was pressured or manipulated into signing it. The Mediator was not neutral and put too much pressure on me. There was a lot of bias against me.” Howsoever the situation got to that point, one thing is clear. Authentic mediation was most probably not practiced. Remember that, as I have continued to emphasize, one of the fundamental elements of genuine mediation is that the power to settle, to bring up the solution, must remain firmly and squarely unequivocally in the parties and not in the mediator or even in any of the parties’ legal (or non-legal) counsel. In fact, such counsel must ensure that the power does not come to them. It is not only the mediator that should be neutral. The same applies to the mediation advocate, so-called. Such representatives can represent parties’ interests but cannot have the power of resolution. Their job is to work with the mediator and their clients to ensure that that power never slips back, wholly or partially, from them to the mediator. It must remain firmly and squarely with the parties.
So, all of us are together in a joint venture upholding the principles of mediation and ensuring that we have only one desire, not to see what I want to be done, not to see what they want to be done, but to ensure that all of us agree together with the power of that agreement lying with the parties. This way, you have a better chance that the mediation settlement agreement would not be challenged because the parties owned it. What is important here is the kind of agreements that we even sign when we come into the agreement? It is what made me think that there are elements that must be present. In an agreement to mediate, there must be an explicit warranty, a clear representation that parties acknowledge that the parties will be responsible for their agreement.
This means there must be a clear acknowledged understanding that neither the mediator nor any of the parties’ legal and non-legal representatives have been responsible for the agreement. There must also be a clear understanding that the mediator has neither the right nor the duty to decide for them, which must be in the agreement to mediate. And I would suggest that when you have written the agreement to mediate, you should ask the parties if there is any part of the agreement that they know they do not understand. And even if they do not bring it up, you highlight it to them, “Oh, did you see clause nine? What do you understand by having the power or responsibility for resolution and/or by the mediator not being empowered to resolve or give advice? If they are not clear, help them; if possible, redraft it so that it says what they understand, and parties right from the onset are pleased on the right path toward a binding settlement agreement.