I recently gave a talk to a professional organization in the Seattle area, about how mediation helps small-and non-profit businesses resolve disputes with less stress and better outcomes. A question I got afterwards from a man there was, “But mediation isn’t binding, is it? You don’t have any options if the other side doesn’t keep the agreement.”
I assured the questioner that yes, a mediated agreement is binding, as binding as any other contract. If at any time you believe the other party or parties to the contract haven’t lived up to their contractual obligations, you have the legal recourses you have with contracts.
I think that, underneath this man’s question, he felt uneasy. I think he’d never seen himself as someone capable of resolving a complex dispute on his own behalf. I see this even in competent, capable people who’ve started successful businesses. Since most of my clients have more important things to do than be in dispute with a client, a vendor, a former board member, or anyone else, they don’t deal with disputes or else they don’t deal with them well.
That’s what a mediator is for, to help people work through disputes. Complex disputes can be overwhelming. A good mediator will always recommend that you consult an attorney (other than the mediator) before you mediate, if you feel you need to. You should be able to get all the support and help you want and need to resolve a dispute through mediation.
In the end, the man who asked whether mediation was binding was reassured that an agreement created during mediation is binding. I hope that, if his business is ever in a dispute that he’s tempted not deal with or to take to litigation, he tries mediation first. It’s less expensive and less stressful than litigation. Since the parties in the mediation are directly involved in deciding the outcome of the case, the resulting agreement can more nearly reflect their needs and aspirations.