Failure to Comply with Mediation Agreement

The failure to comply with mediation agreement can have a lot of ramifications to all parties involved. The goal of mediation is to reach an agreement in a dispute rather than going through a court trial. It can be a less expensive and faster option than going to court if you can amicably work with a mediator. If you cannot reach an agreement, or if you fail to comply with the agreement, it is important to know what steps to take next.

What is Mediation?

Mediation is a type of alternative resolution that parties can use to help resolve disputes instead of going through the court system. The mediation process is a private set of meetings that is confidential to those involved. Both the parties involved and their respective attorneys are assisted by a neutral third party to help develop a mutually acceptable agreement.

What if You Can't Agree During Mediation?

Mediation is a process, not an outcome. The point of mediation is to assist everyone involved to come to an agreement via open communication. If the parties cannot come to a solution through mediation, it does not necessarily mean the mediation failed. Many issues can be solved throughout the process, even if the mediation did not result in a final decision.

If the parties involved cannot come to a settlement in mediation, they would then need to go through an evaluative approach. During this time, the mediator will act in a role of a fictitious court room. He or she will consider all the evidence that would be presented had the issue gone to court.

What if We Can't Come to a Final Agreement Through Mediation?

There are three options you have if you cannot reach an agreement via mediation:

  1. Go to court for a trial. If you fail to make progress through mediation, you can take your issue to court for the judge to decide. This route does not mean the mediation was not successful, as smaller issues could have been resolved as the process moved along.
  2. Try mediation a second time. You can begin a new mediation if you want to try the process again. You can choose a different mediator if you think the current mediator was not helpful.
  3. You can continue to negotiate on your own. If mediation did not yield an agreement, you can continue to work on your own to reach a settlement.

Can We Still Go to Court if Mediation Fails?

If you cannot reach an agreement through mediation, you can still go to court to resolve your dispute. You do not give up your right to go through litigation if you want to try mediation first. However, it can be a lot more costly since you will be paying for both mediation and litigation.

The dispute resolution will also take longer because you will lose the control of your dispute once you take it to court.

Is the Agreement Reached in Mediation Enforceable?

Enforcing an agreement made through mediation is going to depend on the type of situation you are in. The mediation agreement could be a part of a court order or an informal agreement that does not have a legal impact.

One thing to remember is that everyone involved in the dispute has to be at the mediation. If anyone is not there, his or her written consent has to be provided before the mediation is over.

All the terms and conditions of the mediation need to be fully summarized in front of all parties involved. It should be transcribed so that all parties can sign the mediation. All parties then declare the dispute over and both parties are responsible to follow the mediation agreement.

The attorneys may want to have the parties also sign a liability release. If there is no legal case filed, the attorneys will then have everyone sign a contract that binds the parties to the agreement.

If one party does not comply with those terms after signing an agreement, it is considered a broken contract.

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