Typically, the objective in a mediation is to create a legally enforceable agreement. Depending on the parties’ needs, success can also be achieved through a variety of non-enforceable agreements. This article explores the different types of agreements achievable in mediation, highlighting their effectiveness in resolving a wide range of disputes.
1. LEGALLY ENFORCEABLE AGREEMENTS / CONTRACTS
Legally enforceable agreements are formal contracts reached by the parties in mediation that can be upheld in a court of law. These agreements detail the specific obligations and rights of each party and commonly are the primary objective in mediation, especially in disputes involving property issues, contracts, or financial transactions.
- Key Features:
- Detailed terms and conditions
- Clear identification of parties and obligations
- Jurisdiction and enforcement clauses
- Signatures of all involved parties
Example: A local tech startup is developing a new app and facing a copyright infringement lawsuit from a larger, established company. Mediation offers a faster and less expensive alternative to litigation. The parties reached a formal agreement that grants the startup a license to use the disputed technology in exchange for a royalty fee and future collaboration on specific projects, and an agreement to not litigate. The agreement is a legal contract that can be enforced in court.
2. ALTERNATIVES TO LEGALLY ENFORCEABLE AGREEMENTS / CONTRACTS
However, mediation can also lead to other valuable agreements, even if they are not enforceable. The most common examples follow.
A. MEMORANDUM OF UNDERSTANDING (MOU):
An MOU is a non-binding document that outlines the terms and details of an understanding between two or more parties. While not legally enforceable, an MOU indicates a serious commitment to the agreed-upon terms and is often used as a precursor to a formal contract.
- Key Features:
- Description of the agreement’s purpose
- Roles and responsibilities of each party
- Detailed action plans and timelines
- Non-binding but reflects mutual commitment
Example: A local historic society and a group of concerned citizens are at odds over the preservation of a historic building. The historic society wants to demolish the building and construct a new museum wing, while the citizens advocate for its restoration. Through mediation, both parties reach an MOU that outlines a plan for further evaluation of the building’s historical significance. The MOU also establishes a joint committee with representatives from both sides to explore potential restoration options and fundraising strategies.
B. SHARED GROUND RULES:
Shared Ground Rules establish guidelines for acceptable behavior and interaction between parties. These agreements are particularly useful in workplace disputes or community conflicts, where ongoing interaction is expected.
- Key Features:
- Clear guidelines for behavior and interaction
- Specific examples of acceptable and unacceptable conduct
- Procedures for addressing violations
- Commitment to fostering a positive environment
Example: A marketing team in a fast-paced tech company is facing constant conflict and communication breakdowns. Team members interrupt each other, there’s a lack of respect for diverse viewpoints, and deadlines are frequently missed. Through mediation, the team establishes Shared Ground Rules that address these issues. The rules might include:
- One person speaks at a time and allows others to finish their thoughts before responding.
- Everyone actively listens to understand, not just to respond.
- Disagreements are focused on ideas, not personal attacks.
- Meetings have clear agendas and designated time slots for brainstorming and decision-making.
- Team members commit to respecting deadlines and communicating any potential delays proactively.
C. ACTION PLANS:
Action plans are detailed outlines of the steps each party will take to address the issues at hand. These plans focus on practical and immediate actions rather than long-term commitments, making them effective in situations where quick resolution is needed.
- Key Features:
- Specific actions by each party
- Deadlines and timelines for each action
- Metrics for measuring progress
- Responsibilities assigned to each party
Example: In a neighborhood dispute over noise from landscaping equipment, an action plan might include the company installing soundproofing by a certain date and committing to quiet hours for the community. This simple document helps everyone understand their commitments and provides documentation if further action becomes necessary.
D. JOINT STATEMENTS:
Joint statements are public declarations agreed upon by all parties, often used to convey a unified stance on an issue. These statements can be particularly powerful in disputes involving public relations or community concerns.
- Key Features:
- Concise and clear language
- Representation of all parties’ viewpoints
- Unified message to external stakeholders
- Agreement on the content and distribution of the statement
Example: A city government and a residents’ association might disagree about a planned park development. After mediation, both parties could issue a joint statement addressing public concerns and demonstrating their commitment to collaboration. This statement could highlight eco-friendly design principles, preserving green spaces, and ensuring the park meets everyone’s needs.
The beauty of mediation lies in its flexibility and the diverse range of outcomes it can achieve. While legally enforceable agreements are a significant goal, other forms of agreements can be equally valuable. These agreements reflect the parties’ commitment to resolve their disputes and move forward constructively. By understanding and utilizing these different types of agreements, mediators can help parties achieve a broader definition of success in their mediation efforts.
© 2024 Christian Fierro. Disclaimer: This post provides general information and does not constitute legal advice. Please consult an attorney for advice regarding your specific situation.