“Heads of terms “ is the alternative name for the memorandum of understanding (“MOU”). It is commonly used to record the basic principles of an agreement briefly and succinctly. Usually, it will form the basis of a far longer document which will contain all of the necessary detail and mutual protection of the parties.
Your mediator will remind you that this agreement is binding, provided it is signed and dated. It does not need to be in “legal” language.
Get it signed
Most mediators will encourage the conflict parties to take their agreement sufficiently far as to be able to sign up to a deal acceptable to both of them. He will draw in the strands of agreement, see it dated and signed and subsequently send a copy to each party.
Do remember however, that the mediator does not act for either party, nor indeed for both. His role in preparing a document is purely administrative. He has no obligation to make assumptions as to what one or both parties might wish to add or by adding “usual” legal provisions, though he may do so with the approval of both parties.
If the parties leave the mediation meeting without a signed and dated document, then there is always time for one of them to decide to try to improve the agreed terms. This happens most commonly when the parties go away to their respective solicitors and instruct them to draw up the final version.
The solicitors will make comments and suggest improvements, because that is what you pay them to do. If you or your conflict party then has second thoughts and decides to change something in the agreement then that is often the beginning of a disappointing return to the start of your negotiations.
Refining your deal
On the other hand, if the agreement is recorded, signed and dated, there is still no reason why one or both parties should not return to their solicitor for the document to be expanded to cover the finer points required either to give it full effect or to make it administratively more efficient, or simply to improve the deal for both sides.
If the deal is comparatively straightforward, the parties may well decide they don’t need solicitors. They have agreed what needs doing and they just get on with it. If the deal is complicated then solicitors can finalise it.
In some cases, the parties may actually prefer a provisional agreement, as the MoU provides, confident that they can take it further or apply it to additional circumstances or for some other reason. The mediator is fine with that too.
Another alternative outcome is that the mediation proceeding runs out of time before the final terms can be agreed. One possibility is to adjourn the meeting to a future date. Another is for the parties to get together and come to a final deal, with the benefit of the discussion before the mediator.
In summary, our mediator will always try to promote a binding agreement.
Note: this is not how it works for a mediation about your divorce and separation.
For that, you need to know about drawing your consent order.
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