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The Outcome of Mediation Documentation

Enforceability of mediated agreements

This stage of the process presents another challenge which is far more than simply drafting an omnibus precedent.  The working group will need to reflect on a very different situation around the world. 

The mediation outcome from many countries, particularly although not only civil law, is expected to be open.  Immediately able to be recognised and enforced.  International laws such as from the EU put these mediation outcome documents on a par with court orders and binding agreements.  The parties, their lawyers and the mediator expect this.

In stark contrast, mediation from a number of countries, primarily common law but certainly not all common law countries, are adamant that the mediation outcome only becomes open, binding and enforceable once the parties have had the benefit of taking legal advice and there has been confirmation that the parties nevertheless still wish to proceed with the mediation outcome.  Indeed, some countries will expect a court order before the mediation outcome can be enforced. 

This will be a very difficult area to cover.  It will be a challenge to shift cultural expectations and indeed legal requirements.  In most countries, family mediation operates as part of civil mediation.  It is not a distinctive stand-alone area.  Nevertheless some accommodation of way of working must be found.

In mid-December 2022, the Hague Conference produced an excellent guide to agreements in respect of children disputes, whether parenting or child financial arrangements.  This may be informative of the work regarding outcome documents.

It’s not yet clear what will be the outcome of this work.  It might be a precedent omnibus outcome document which can be adapted into national situations and the variety of issues arising for international families.  But it might be alternatively or in addition guidelines for working with a mediation outcome in different national contexts and systems.

If anyone would like to take part in this complicated area of this work, please get in touch with us.