Mediation Act 2017: enforcability of mediated agreements

Practitioners will be aware that section 11(2) of the Mediation Act 2017 provides that a mediation settlement shall have effect as a contract between the parties to the settlement, except where it is expressly stated to have no legal force until incorporated into a formal legal agreement signed by the parties.

Practitioners will also be aware that section 8(2)(d) of the act provides that the mediator shall ensure that the parties are aware of their rights to each obtain independent advice (including legal advice) prior to signing any mediation settlement.

And practitioners will be aware that best practice for qualified mediators is that agreements to mediate separating couples’ disputes shall expressly provide that any agreement reached at mediation is not legally binding until incorporated into a formal legal agreement, and that mediation settlements of separating couples disputes are never intended to be binding and are always expressed to be non-binding.

When advising clients about mediation, as required by the act, practitioners should ensure that their clients who may choose to participate in a mediation process without legal advice, assistance or representation, are aware of these provisions and best practice and of the risk of entering into a binding agreement in mediation of separating couples’ disputes.

Practitioners will be aware that preparing any document relating to real or personal estate or any legal proceedings is restricted by section 58 of the Sol Solicitors Act 1954, as amended.