Traditional Contract Law Principles as Means for Enforcing Mediated Agreements: Can They Safeguard Fair Process in Mediation?

Abstract

The parameters of enforceability of mediated agreements seem still unclear in most jurisdictions. According to the prevailing in theory and case law as well view, a settlement mediated agreement is actually a contract and thus is governed by the principles of traditional contract law. This means that in case of disputes arised over the enforcement of mediated agreements, courts apply traditional contract law principles, in order to decipher the truth behind each settlement. Traditional contract law, which provides a stable framework for enforcing properly reached agreements, while refusing to enforce invalid agreements, distills important interests that apply in the context of mediation, as well as in other contract settings. Nevertheless, the tendency of adopting a contract law approach in mediation has to overcome a lot of obstacles. The major problem is that the evidence necessary to apply this framework may necessitate invading the confidentiality of the mediation. And while many scholars call for an extended exemption to the mediation confidentiality, exemption which is adopted by model and state legislations as we will examine below, applying contact principles flourished in an adversarial framework to the consensual mediation has been the source of a debate pitting the fundamental goal of enforcing mediated agreements on one side, and the goal of fostering an effective process for reaching those agreements on the other. The main concern is that courts may apply contract law to enforce a settlement agreement, however with little regard to the special nature of mediation process. This paper aims to respond whether traditional contract law is suitable for the enforcement of mediated agreement or its usefulness and positive results it can bring cannot balance the fact that it may put in peril substantial mediation goals.