A Mediation Agreement That is Not Yet Signed/ Martin Rosenfeld, JD

Posted on May 10, 2015

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There are suggestions that mediation agreements contain a clause that such agreement is not valid until it is signed. This is an accurate depiction of the law. Any agreement meant to be in written form, cannot be binding without such a signature. What to do in the interim?

There a few possibilities:

1. The parties can sign a handwritten agreement drafted by the mediator and not leave until this is accomplished at the last session.

2. The parties can make a token gesture such as a handshake and indicate that they have accepted the terms of the mediation. Of course, what those terms are may well be the subject of controversy. This gesture may be a hollow one.

3. The parties may simply be advised that his is the nature of agreements. Until a contract is signed, parties can in fact still withdraw their acceptance of the terms. If this is made clear in advance, the parties need to appreciate the importance of good faith bargaining and the value of the spoken word. Perhaps this very issue needs to be stressed at every meeting. Where there is no good faith there is not only a possible dead end at the mediation’s ending. There is no true attempt for Win-Win. Why undertake to do something if you are not serious about keeping your word and building on good-faith? Even opposing parties can buy into the logic of such a commitment.

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