“Just Settlement” or “Just About Settlement”? – Mediated Agreements: A Comparative Overview of the Basics

The present paper is not so much about national legislations on mediation, nor is it about the law of the European Union, nor is it about mediation and settlements agreements in cross-border disputes. It is rather about variations on the theme of freedom of contract; its promotion and its restrictions on the field of dispute reso-lution, all within a comparative background. Freedom of contract is indeed a principle that forms part of a set of uncontested basic concepts fundamental to the most legal systems of the world. Its universal nature reflects an element of a common political culture that places the rights of the individual at the centre of economic, social and legal activity. From the central position of the individual in the economic and legal order follows the principle of party autonomy and party disposition as principles that shape dispute resolution methods and their formats. Accordingly it is the parties and not the state, who should in principle choose the dispute resolution mechanism along with its commencement, scope and termina-tion. On the basis of a preliminary overview of the relationship between adjudication and consensual dispute resolution, the present paper will focus on agreements re-sulting from mediation, in particular: legal nature, terms, formal requirements, legal effects, avoidance. However it would be not advisable to focus exclusively on solutions stemming from recently adopted legislations on mediation, which would fail to adequately cover the subject matter, particularly as far as contents, legal effects, avoidance of agreements resulting from mediation are concerned. The perspective should be broadened to deal with legal rules applying to settlement agreements and comparing them, where appropriate, with the general law of contract. The attention will be drawn on those circumstances that, due to the ac-tivities of the mediator, are likely to arise more frequently in the mediation pro-cesses rather than in simple negotiations between the parties by themselves. The actual state of legislation, legal scholarship and case law on these topics is somewhat unsatisfactory to say the least. Typically laws and commentary lack an analysis that takes into account the interplay between different elements. There is a failure to address the interaction between legislation and legal literature on mediation (that normally omit to deal with topics such as contents, legal effects, avoidance of agreements resulting from mediation) and legislation and legal lit-erature on settlement agreements (that normally omit to distinguish agreements resulting from mediation from all of other settlements agreements). In order to achieve a systematic overview of the issue one should bridge this gap, analyzing both levels of regulation together. As far as the relationship between adjudication and out-of-court settlement is concerned, the great debates on mediation in the mid-1980s in the US and mid-1990’s in Europe as well as the subsequent implementation of mediation programs in both areas was an essential turn in the landscape of dispute resolution in western countries. One may wonder whether this new institutional setting should challenge (or at least reframe) the starting point that the legal rules applying to settlement agreements achieved by the parties without the assistance of a mediator apply generally to agreements resulting from mediation schemes. Before the institutionalization of mediation in the western countries settling a dispute through an out-of-court agreement or litigating the case before courts and seeking adjudica-tion was an individual choice of the parties even if they could decide to be assisted by a mediator. After the large scale development of mediation schemes, the alternative between settlement and adjudication is rather an institutional choice, supported by a number of policies and different lines of argument. In this framework it is worth questioning if traditional and general rules on settlement agreements can be expanded by analogy to agreements resulting from mediation without being significantly adapted. Has this new institutional setting whereby settlement agreements are promoted by mediation schemes, a role to play in interpreting the general rules on settlement agreements and applying them to the agreements resulting from mediation? Is there a need for new rules, bridging the gap between the traditional regulation on settlement agreements and the more recently adopted rules on mediation? To try to answer these questions is the main purpose of this article.