Presentation on theme: "MR. ALEX NARTEY NATIONAL COORDINATOR OF ADR. There are two types of mediation agreement The agreement to mediate (consent to mediate) and Terms."— Presentation transcript:
There are two types of mediation agreement The agreement to mediate (consent to mediate) and Terms of settlement (the mediation agreement) The Agreement to mediate (consent to Mediate)
The agreement to mediate is the initial agreement made by the parties that enables them go through the mediation process. This would normally involve the signing of consent forms to attest that they voluntarily agreed to go through the process.
This is very important because it informs the mediator of the parties’ willingness to partake in the process and also documents the fact that parties voluntarily consented to mediation in line with Act 798. It also gives the mediator the go ahead to commence mediation proceedings.
The mediator must always ensure that parties have agreed to go through the process and have signed consent to mediate form before he/she starts to mediate. Settlement agreement (terms of settlement)
Settlement agreements are an important part of the mediation process. They commit to writing the various agreement, the parties cannot “forget” what they have agreed to. A written agreement assures that each of the parties has a clear and equal understanding of all aspects of the resolution of the dispute
It is a means of reducing conflict aftermath caused by different understandings of the agreements reached into an enforceable statement. Guidelines will assist you in writing a settlement agreement:
Identify all parties by name, address, position and titles. Confirm accuracy and spelling. Identify what must be done and who is responsible. Describe method and frequency of payment (if any).
Identify who will verify receipt of money, goods or services. Specify dates and deadlines. Avoid terminology not understood by the parties use plain language
Incorrect: the party of the first part herewith agrees to be bound to the party of the second part by the terms and provisions of said agreement notwithstanding. Correct: AB agrees to complete all payments of GH¢400.00 per month for 36 months beginning 1/1/01. Payment shall be postmarked on the 15 th of each month.
Avoid vague language Incorrect: as soon as possible and with all deliberate speed the R. Company will rehire X. Correct : beginning today, December 1, 2002, CD will pay EF the sum of X
Avoid making agreements which are destined to fail. Do some reality testing. Respond to all issues and promote mutual interest satisfaction, but do not get involved in unrelated or peripheral matters (non-issues).
Identify the consequences if the agreement (the promises made) is broken. Determine who is responsible for monitoring the agreement. Above all else BE SPECIFIC and COMPLETE on every issue addressed in the agreement
Encourage a future dispute resolution clause. List each provision separately. Don’t include too much in each point of the agreement. It is helpful to use numbers or bullets. If possible, it is helpful to group areas of the agreement within the document.
Omit mention of blame, fault of guilt. Remember, the agreement applies to the future. Do not include third parties in the agreement. Persons not at the table cannot enter into a fully informed or committed agreement.
Never pressure the parties into resolution. Remember, a mediated agreement is a mutually agreeable resolution, crafted be a belonging to the parties. Check not only for substantive satisfaction but also for procedural and psychological satisfaction
If only some of the issues have been resolved (by consent of the parties) is there an agreed upon path forward to address the remaining unresolved issues at a later date or in another forum? Verify if the parties have had the opportunity to consult with an attorney or other subject matter expert. Before they sign an agreement, parties should be well informed
Is each party READY to sign an agreement? Voluntarily? Willingly? With authority? Have they had the opportunity to save face? The agreement is written either by the mediator or the parties themselves. This must be agreed upon by parties.
Read the agreement back to the parties’ point-by-point. Make eye contact with each party after each point and get verbal or visual affirmation on all points. If you observe hesitation, explore it. For example “I sense some hesitation, are you sure you’re comfortable with this agreement (or this point)
Make sure the parties feel they own the resolution. You may want to ask “why do you feel this agreement will work for you? What do you like best about it?”
Plan as you go don’t wait until the end to start thinking about what the possible agreement. Make a note to yourself to go back to it later and probe for agreement. Use drafts. Avoid the temptation to write FINAL on an agreement on the first try.
A good idea is to consider beginning the body of the agreement with a statement of the intent of the parties, such as: “The parties agree that they want to be good neighbors (or, live in peace or continue their relationship in a constructive way). In order to achieve this, they agree to: …………..”
Remember, once you have drafted the final settlement agreement it is important to stop and reflect on what has transpired during the entire mediation process to make sure you have covered all points and issues and that they are each properly and completely addressed in the final settlement agreement. Too often this step is skipped only to raise its ugly head later when a party “reminds” you of a point or issue which has not been covered or resolved.
It is important to keep in mind that THE MEDIATOR OR THE PROCESS SHOULD NOT GIVE THE PARTIES ANY REASON NOT TO LIVE UP TO THE AGREEMENT TO WHICH THEY HAVE COMMITTED. For example: “you didn’t ask me that! I didn’t say I’d do it” Don’t leave room for “buyer’s remorse
SIGNING TERMS OF AGREEMENT Agreements must be signed or thumb printed by parties and the mediator. These signatures or thumb prints are necessary for the agreement to hold and be binding.
There must also be a default clause. In the absence of these, there is no agreement