How important  is it to have a mediation agreement?

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I recall a mediation case that I managed where a client flatly refused to have anything written down in the form of an agreement. My co-mediator and I tried to explore what the client’s concerns were around not having an agreement. We felt that we had to respect the client’s viewpoint. In our experience we find that clients are more likely to censor themselves if they feel they are being forced into an arrangement.  In such a case within the context of mediation, the fundamental principles of flexibility and voluntary should always apply. Keeping the choice of a formal agreement, open in a positive and constructive meaningful way will always give you an opportunity to meet you where you are in a mediation meeting and help you to arrive at some of form understanding or agreement as part of resolving a conflict or dispute

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What is the purpose of a formal  Agreement?

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The mediator  prepares and structures an agreement. By having an agreement written by the mediator,  it will take the pressure off you, so won't need to make any notes and will be useful to show as evidence that you have achieved an outcome for the following reasons :

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• It’s a record of matters that have been discussed

• It’s a record of what has been resolved

• It’s a way to help you clarify your thoughts on certain issues

• It encourages you to find your own words and how you would like it to be inserted within the agreement

• It’s a reminder of the practical things that you have thought about

• It's a way of recording any thoughts, acknowledgements or apologies

• You have arrived at some form understanding about matters that have been agreed upon

• It could be useful for the referrer that there has been an outcome

• The agreements are confidential between you and the other party to the mediation, unless it has been agreed that it can disclosed to a third party such as the referrer 

 

As a matter of interest to conclude on the above case concerning the client who initially refused to enter into a formal agreement, I’m pleased to say that my co-mediator and I were successful in obtaining an agreement. We looked at the blockage, which happened to be a cultural reason which we could give allowance for. We encouraged the client to explain what they wanted and asked how they wanted to move forward. The client felt that the agreement was important and presented ideas that could be actioned upon that they would be happy with.

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I find this a very interesting area. I’d be happy to hear from you sharing your thoughts on this subject

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Winnie Onyekwere LLB LLM

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