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The blog of Resolution Systems Institute

Is Getting It in Writing a Universal Best Practice?

Susan M. Yates, August 29th, 2013

The New Jersey Supreme Court recently ruled that agreement terms must be written and signed before the parties leave a mediation in order to be enforced. Experienced mediators are familiar with the push-pull at the end of a long mediation of whether to write up an agreement. On one hand, everyone wants to be done with the mediation and go home. On the other hand, writing enough so that the agreement is clear, and then signing that agreement, can forestall major problems down the line. Now, at least in New Jersey, what should be done is clear: if the terms are not written and signed, it will not be considered an enforceable agreement.

Should this “best practice” apply to all court mediation programs? Not necessarily. For example, in the Domestic Relations Division of the Circuit Court of Cook County in Illinois, parents who reach agreement about custody and visitation through the court’s mediation program take those terms to their lawyers for review and incorporation into their joint parenting agreements. Especially for parties who are not represented in mediation, it may be a good idea to give the parties time to consider the terms of the agreement. Another program in the same jurisdiction may want to apply this standard, requiring at least a term sheet be signed at the mediation. For example, according to the rules for civil litigation in the Law Division of Cook County, “If an agreement is reached, it shall be reduced to writing and signed by each of the parties.”

What does this ruling mean for court mediation programs? We should consider what such a requirement would mean within our specific context. We should listen to those with experience in a particular practice area to determine what “best practice” is. We should continue to weigh the costs and benefits of a written agreement requirement when making mediation program design decisions. And then we should pave a path that maintains the process and goals of mediation while taking into consideration this variety of perspectives.

Peter Phillips has written more on this ruling in his blog post.

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