Another problem is what explanations can be relied upon in mediation? In mediation, a certain attitude is expected, and an opponent will know (or should) know that such statements are not intended to rely on this. Other performances may fall into a very different category. I hope we`ve settled that a little bit. Mediation is effective because the parties have more ownership of the resolution. Generally, this means that both parties are more likely to meet the requirements, but if not, there are other options to pursue. A well-developed mediation agreement should also be easier to understand than an agreement that is virtually impossible to decipher without the help of a lawyer. A key question is, what is “on a reasonable and-zuser”? Mediations are moving parties and not two mediations are equal. It is a flexible process that often requires a mediator to adapt to changing and highly pressured circumstances. This makes determining the level of qualification and support required by a mediator a difficult task. In addition, the definition of the standard of care expected by a mediator, like the right to the offence, creates real difficulties.
Much will depend on the actual context of the dispute and the circumstances that led to the mediation. Added to this is the flexibility and relative informality of mediations, and findings on whether a mediator falls within an acceptable level become extremely difficult. How would you enforce this agreement in court? It was written, but instead of a contract, it was supposed to be the checklist. “Keep in mind that you need to talk to me if you have a problem?” or “Remember I have to use the signal to ask you for time to talk in private?” This would probably not result in a breach of the treaty. How would we know if there is an offence? How would we measure the damage? In this case, the parties could return to mediation, submit a new agreement to respond to what was not working, or re-commit to the original agreement. Since they have to continue their relationship, it is both ways to try again.