Phase V and VI: Finalising the Agreement and Closure:

Introduction:

The parties, after searching for solutions and choosing mutually acceptable solutions, will have to finalise their agreement. This note discusses what that entails and provides tips for preparing the written agreement.

What is Done at this Phase:

It will be remembered that at Phase IV: The Search for Solution-Innovation and Problem Solving, the parties are to come up with options for mutual gain. Some options are chosen using the established objective criteria and the chosen options are noted.

At the finalising agreement phase, what the parties are agreeing on is clarified and written down, and the parties are supervised to sign the written agreement as representing what they have agreed to.

Tips for Preparing the Written Agreement:

In writing down the agreement, the following should be noted:

1. Use plain and simple language: This is important to prevent the agreement itself becoming the basis of future disputes. Words like “may,” or “could,” by virtue of their uncertainty and lack of finality, could lead to future disagreements. Rather, words that are definite, such as “will,” “shall,” and “will not” should be preferred.

2. Be specific: Between parties who have no history of cooperation, it is important to get specific with details such as dates, times, payment plans, schedules, and responsibilities to ensure clarity and accountability. Clearly defining these details minimizes misunderstandings and helps both parties commit to the agreed terms.

3. Omit mention of blame, fault, or guilt: According to McCorkle and Reese [1], “the agreement is a plan for the future, not a rehashing of the past.” The past is one that is most likely replete with blame, fault finding, among others. In drafting the agreement, do not add statements that rehash these past issues.

4. Using words that capture the intention of the parties: The words of the agreement must be carefully chosen to reflect the intention of the parties. For instance, do not say, like counsel in P.Y. Attah & Sons v. Kingsman Enterprises Ltd. [2007-2008] SCGLR , “all the residue now unexpired of the said term of 50 years granted by the head lease” when all you wanted to do was capture an agreement for a sublease.

v. List each agreement separately:When agreements are lumped together, they can become complex to understand and lead to future disputes.

Enforcement of the Agreement:

Once the parties have reached an agreement, the agreement can be enforced. In Section 81(3) of Act 798, it is provided that if the parties sign the settlement agreement, which is an agreement containing the terms agreed to by the parties, they “shall be deemed to have agreed that the settlement shall be binding on the parties and persons claiming under them respectively”

In Section 82 of Act 798, the status and effect of the settlement agreement is provided for. The section reads:

Where the parties agree that a settlement is binding, the settlement agreement has the same effect as if it is an arbitral award under section 52.

The essential question now is, how does a party enforce the agreement? The answer is that this is done by a motion on notice. Below is a sample of such a motion:

Phase VI: Closure:

This is the concluding phase. The parties are thanked for participating in the session. If there is an agreement, copies of the agreement are distributed to the parties. If the mediation was commenced at the instance of the court, reference should be made back to the court.