Many people ask whether they should take a mediation session as seriously as a court hearing.
The answer is that mediation and court are different processes, but a mediation agreement can have legal effect.
Mediation is not a court hearing. There is no judge making a decision, and the mediator does not decide who is right or wrong. Instead, the parties work with a neutral mediator to see whether they can reach their own agreement.
However, this does not mean that what is agreed in mediation is simply informal or without legal significance.
Is mediation as serious as going to court?
Mediation should be taken seriously because the purpose of the process is to help the parties reach a clear and considered agreement about the issues in dispute.
The Courts Service describes mediation as a private and voluntary process in which a neutral mediator helps people work towards an agreement.
So, there is an important distinction:
In court:
A judge makes a decision where the parties cannot agree.
In mediation:
The parties make the decisions themselves.
The fact that there is no judge in the room does not mean that the process should be treated casually.
Does a mediation agreement have legal value?
Yes, potentially. Under section 11 of the Mediation Act 2017, the parties determine whether and when a mediation settlement has been reached and whether it is to be enforceable between them.
The Act provides that, subject to the provisions of the legislation, a mediation settlement generally has effect as a contract between the parties, unless the parties expressly state that it will have no legal force until it is incorporated into a formal legal agreement or contract.
This means that a properly reached and documented mediation settlement is not simply a note saying, “We discussed this and agreed.”
It can create contractual obligations between the parties.
Can a mediation agreement be enforced?
In certain circumstances, yes. Section 11 of the Mediation Act 2017 allows a court, on application, to enforce the terms of a mediation settlement, subject to the statutory requirements.
For example, the legislation provides that enforcement may be refused where the settlement does not adequately protect the rights and entitlements of the parties and their dependants, is not based on full and mutual disclosure of assets, is contrary to public policy, or where a party was overborne or unduly influenced in reaching the settlement.
This is one reason why the mediation process should be conducted carefully and why a mediator should ensure that parties have the opportunity to participate freely and understand the terms being agreed.
Is a mediation agreement the same as a court order?
No. This is an important distinction.
A mediation agreement and a court order are not automatically the same thing.
For example, where parents agree arrangements concerning a child's access, the Courts Service explains that they can ask a judge to make the agreement a Rule of Court. Once made a Rule of Court, the agreement is treated in the same way as a court order and can be legally enforced like one.
Similarly, the Courts Service explains that a custody agreement can be made a Rule of Court, giving it the same effect as a court order and allowing it to be legally enforced.
Therefore, a useful way of explaining the difference is:
A mediation agreement can have legal effect, but it is not automatically the same thing as a court order.
What about maintenance agreements?
Maintenance is another area where it is important to understand the distinction.
The Courts Service recognises three ways of making maintenance arrangements:
- A voluntary agreement between the parties;
- A voluntary agreement reached with the assistance of mediation or legal professionals; or
- A maintenance order made by a judge.
A written voluntary or mediated maintenance agreement can be made a Rule of Court, which means it can then be legally enforced in the same way as a maintenance order.
There are also specific legal limits and requirements depending on which court is asked to make the agreement a Rule of Court.
Why should both parties understand the agreement before signing?
A mediation agreement should reflect what the parties have actually discussed and agreed.
Before signing, each party should have the opportunity to:
- read the agreement;
- ask questions;
- clarify anything they do not understand;
- consider whether the terms accurately reflect what was agreed;
- obtain independent legal advice if they wish to do so; and
- decide freely whether they wish to sign.
This is particularly important where the agreement concerns children, maintenance, property, finances or other significant legal rights.
The mediator remains neutral and does not act as the solicitor for either party.
Can you change a mediation agreement later?
It depends on the nature of the agreement and whether it has been incorporated into a court order or otherwise formalised.
The Courts Service notes that mediated agreements can be changed or amended as circumstances change. However, where an agreement has been made a Rule of Court or forms part of a court order, an application to court may be necessary to change it.
This is particularly relevant for arrangements concerning children, because children's circumstances and needs can change over time.
Mediation is different from court — but it should not be taken lightly.
Mediation offers the parties an opportunity to remain involved in the decision-making process rather than asking a judge to decide the disputed issues.
However, voluntary does not mean meaningless.
When parties reach a mediation settlement, the terms can have legal consequences. Under the Mediation Act 2017, a mediation settlement can have effect as a contract between the parties, and in appropriate circumstances its terms may be capable of enforcement.
Where appropriate, the parties may also seek to have an agreement made a Rule of Court, giving it the same effect as a court order for the relevant matters.