An agreement reached by the parties in a mediation is binding if:
- It is written, and
- Signed by the parties
So the simple answer is yes – the agreement reached at a mediation will be binding but only when the parties write it down and sign it. This is spelt out in the mediation agreement which the parties sign before the mediation starts.
How do you enforce an agreement reached at mediation?
- If you signed a Tomlin Order then you just go back to the court and apply to enforce the terms of the agreement as set out in the schedule to the order.
- If a consent judgment was agreed and formalised by the court then you apply to enforce that judgment.
- If proceedings had not been started before the mediation then the written agreement is a compromise contract and you will need to sue for breach of that contract.
What if no agreement is reached?
In this case the parties return to whatever dispute resolution they were using before they tried mediating – most probably litigation. Anything that was said, offered or conceded during the mediation was done on a without prejudice basis and those statements are not binding on the parties and can not be relied upon in the litigation.
Related posts:
