Foundational principles of mediation are that it is a confidential and without prejudice process. This means that parties can feel free and empowered to communicate their deepest interests and desires in regard to the resolution of the dispute between them. Furthermore, without prejudice means that they can put forth options for resolution that are outside of the parameters of legal processes.
Mediated agreements, though they may be reached through a confidential and without prejudice process, may become subject to scrutiny outside of the process. If that happens, it’s important that the parties of the mediation and the subsequent agreement communicate what their interests were at the time of reaching the agreement. If they don’t remember, or if they were negotiating without being fully present, without negotiating in good faith, then perhaps the agreement should be revisited, either in the mediation process or another alternative dispute resolution process.
Mediated agreements are to be built from the shared interests of the parties to mutually satisfy the disputes between the parties. Mediators encourage the parties to seek independent legal advice should the agreements they have made have legal implications or ramifications. Parties often make these agreements in mediation based on the privileged conversations held in mediation, rather than through a formal, rights-based process. Because of this, there is little to no evidence available related to how the mediated agreement was reached. This is important because the mediation process is supposed to be a safe space to explore creative options that might be outside of what a court could order or what a lawyer could achieve through negotiations.
The integratory of the mediation process relies on the process remaining confidential and without prejudice, regardless of future challenges to the agreements reached. Should the parties later on feel that the commitments should be altered, negotiations should be re-entered, or another process should be initiated, the original mediation process that was used to reach an agreement should remain closed, confidential, and without prejudice. Opening the file could prejudice either party and would remove the confidential nature of the process.
People choose mediation because they want a negotiation process that is confidential and without prejudice. If the parties later on choose to enter a public and with prejudice process, the mediation process should remain separate. Mediation’s focus is on reaching mutually beneficial and satisfactory resolutions based on the individual and shared interests of the parties. A rights-based process that is public and with prejudice is completely different, has different implications, and different goals than the original process.
The parties are welcome to submit the agreements they reached in mediation to the shared pool of meaning in future negotiations, but how those agreements were reached should be reserved to the mediation process. The parties are welcome to resume the mediation process and reopen negotiations if they so choose, but those negotiations should continue to remain confidential and without prejudice.
Mediation is a process that is completely separate from and different from a rights-based process. Mediators are peacemakers, not advocates, and their role is to facilitate dialogue, deepen understanding, build consensus, and ensure both parties are entering into agreements voluntarily.
Some mediated agreements may have legal implications, while others may not. The purpose of a mediated agreement is to document an agreement reached through interest-based negotiation. These agreements are reached through mutual agreement, based on the unique needs and desires of the participants, and may be outside of what a court would order or what a lawyer would advise. This is why mediators often encourage their clients to seek independent legal advice regarding agreements they reach.
Self-determination is a primary principle of mediation. Because of this, if the parties do not seek independent legal advice, that is up to them and is not the responsibility of the mediator. Many parties may take their mediated agreement to a lawyer for independent legal advice, but other parties may decide that they do not want independent legal advice and sign it without consulting a lawyer. This is the decision and right of the client, and the mediator is not to coerce either party to sign an agreement they are uncomfortable with.
At the conclusion of a mediation process, if the parties agree to something and sign it, with or without independent legal advice, they may later on have buyer’s or seller’s remorse and wish they had negotiated a different deal. If that happens, it may be most appropriate for the parties to return to mediation to re-negotiate the terms of the agreement. In a rights-based process, they may have difficulty because they, of their own free-will agreed; thus, mediation might be best for untangling the original agreement and building a new agreement.
In some situations, only one party has regrets related to a mediated agreement. If this is the situation, the other side may not be agreeable to alternative dispute resolution at all, but if they are, it might be a more fruitful process than a legal avenue. To legally challenge an agreement reached in mediation, it can be costly and frustrate both parties. If the parties enter an alternative dispute resolution process, such as mediation or arbitration, they may be able to reach an amended resolution that still satisfies both of their needs and interests, while upholding the original spirit of the agreement they reached.
If both parties are unhappy with an agreement reached in mediation, they are empowered to set the agreement aside and negotiate a new agreement with the help of professionals or on their own.
People enter agreements all the time; whether implicit or explicit, whether with legal advice or without, the difficulty comes with how those previous discussions were had and whether those can be opened or not. In regard to mediation, those conversations are closed and are privileged to the individuals involved. To re-negotiate, parties are welcome to re-open those conversations in a new process; however, that original process remains as it was, confidential and without prejudice. This is to uphold the integrity of the process and to encourage others to try mediation, because it is an opportunity to find creative solutions to disputes, rather than following the narrow parameters that may be afforded by a legal context, and always being encouraged to seek legal advice.
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