Mediation agreements are negotiated agreements between the parties in dispute. They are in common use when it comes to separating couples when the relationship has broken down and the parties seek to do the sensible thing and negotiate certain terms to cover matters such as property, maintenance, custody, access, and so forth.
Mediators guide the parties to their own agreement but do not give legal advice and the mediated agreement is not legally enforceable unless an extra step is taken.
The Mediation Act 2017 is important in this connection, however, as section 11(2) of the Mediation Act 2017 states
(1) The parties shall determine—
(a) if and when a mediation settlement has been reached between them, and
(b) whether the mediation settlement is to be enforceable between them.
(2) Notwithstanding subsection (1) and subject to subsection (3), a mediation settlement shall have effect as a contract between the parties to the settlement except where it is expressly stated to have no legal force until it is incorporated into a formal legal agreement or contract to be signed by the parties.
Mediated agreements must be ruled in court in a divorce or judicial separation. However, the court retains its discretion as to whether the agreement makes proper provision and will not rule such an agreement in certain circumstances set out in section 11(3),
(a) the mediation settlement—
(i) does not adequately protect the rights and entitlements of the parties and their dependents (if any),
(ii) is not based on full and mutual disclosure of assets, or
(iii) is otherwise contrary to public policy,
(b) a party to the mediation settlement has been overborne or unduly influenced by any other party in reaching the mediation settlement.
The Mediation Act 2017 and solicitors
Section 14 of the Mediation Act, 2017 sets out the obligations on solicitors under the act as follows:
Practising solicitor and mediation
(1) A practising solicitor shall, prior to issuing proceedings on behalf of a client—
(a) advise the client to consider mediation as a means of attempting to resolve the dispute the subject of the proposed proceedings,
(b) provide the client with information in respect of mediation services, including the names and addresses of persons who provide mediation services,
(c) provide the client with information about—
(i) the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and
(ii) the benefits of mediation,
(d) advise the client that mediation is voluntary and may not be an appropriate means of resolving the dispute where the safety of the client and/or their children is at risk, and
(e) inform the client of the matters referred to in subsections (2) and (3) and sections 10 and 11 .
(2) If a practising solicitor is acting on behalf of a client who intends to institute proceedings, the originating document by which proceedings are instituted shall be accompanied by a statutory declaration made by the solicitor evidencing (if such be the case) that the solicitor has performed the obligations imposed on him or her under subsection (1) in relation to the client and the proceedings to which the declaration relates.
(3) If the originating document referred to in subsection (2) is not accompanied by a statutory declaration made in accordance with that subsection, the court concerned shall adjourn the proceedings for such period as it considers reasonable in the circumstances to enable the practising solicitor concerned to comply with subsection (1) and provide the court with such declaration or, if the solicitor has already complied with subsection (1), provide the court with such declaration.
(4) This section shall not apply to any proceedings, including any application, under—
(a) section 6A, 11 or 11B of the Guardianship of Infants Act 1964 ,
(b) section 2 of the Judicial Separation and Family Law Reform Act 1989 , or
(c) section 5 of the Family Law (Divorce) Act .
Solicitors need to ensure clients know that mediation is a voluntary process to arrive at a negotiated solution for the parties. Mediation agreements are intended to be binding but it is advisable that any such agreement is not legally binding until it is put into a legal format. For this reason both parties should be advised and encouraged to obtain legal advice before signing the concluded agreement.
The Law Society advises its solicitors to state that such agreements are not legally binding until further steps are taken to give it binding legal effect. Solicitors are advised to insert the following clause in the agreement:
“We are signing the mediation settlement in recognition of completion of our mediation. We understand that, in signing this, we are not entering into a legally binding and enforceable agreement, for which more steps must be taken to give binding effect to our mediation settlement.”
In summary, the Mediation Act 2017 provides that the mediation agreement shall have effect as a contract between the parties unless expressly stated to be otherwise. The Law Society recommends the clause above to ensure this is the case.