Mediation and the Myth of Enforceability

Abstract

Mediation is a trending alternative dispute resolution mechanism despite some of its alleged shortcomings. One such is that the mediated outcome lacks enforceability, which is not the case in real life. Whereas various jurisdictions have expressly dealt with this alleged issue, in the absence of any explicit provision for the same, a mediation settlement agreement could also be enforced in a Court of law, by treating it as a regular contract. The presence of the highest form of autonomy in the mediation process makes its settlement agreement qualified at the outset to be considered as a contract. More pertinently, offer; acceptance; consideration; intention to create a legally binding relationship; legality and capacity as fundamental requisites of a legally enforceable contract is often seen to be present in a mediation settlement agreement, thus allowing it to be enforceable as a contract between the parties who have freely entered into such agreement to settle their dispute. It is therefore accurate to conclude that the unenforceability of a mediated outcome is a myth even where there is no specific provision to that effect. Keywords: Mediation, Mediated Settlement Agreements, Enforcement of Mediated Settlement Agreements, Contracts and settlement agreements