Get the Mediated Agreement in Writing
Be sure to wrap up a mediation session that seems to be over so that the parties walk away with a durable, enforceable agreement . . . in writing.
In mediation, the parties often reach agreement very late in the day, sometimes not until early the next morning. By that time, the conference room is cluttered with the remains of morning croissants, bag lunches, pizza dinners, and candy wrappers from the nine-to-midnight shift. Everyone just wants to go home and draft the written agreement later.
What’s so bad about that? After all, the parties have agreed to all the settlement terms — the total amount of money payable, the time over which it must be paid, the stipulated judgment in the event of default, and the stipulated judgment amount (higher than the settlement agreed upon because it contains a hammer clause).
What’s so bad about waiting to ink the deal is that it can fall apart over any number of minor issues. Here are just a few of the kinds of provisions over which a deal can fall apart, even though the parties have agreed to what they believe are all the principal deal points:
The dismissal of ancillary proceedings: If the parties are involved in more than one piece of litigation, or if administrative, family law, or criminal proceedings are pending or threatened, these issues need to be addressed.
Forbearance from inducing future actions by nonparties: Where the parties have an extremely low level of trust and fear sabotage or retribution in the future, they can and should agree to refrain from engaging nonparties in acts of sabotage or retribution, such as encouraging a nonparty to break a contract with the adversary.
Liquidated damage clauses for the breach of certain critical deal points: The parties should clarify the calculation of damages for any breach of the agreement when damages would be difficult or impossible to determine in the event of breach.
Attorneys’ fees and arbitration clauses in the event of breach: The mediation agreement is essentially a new contract, so it needs to state who pays the attorneys’ fees and how arbitration will be handled if a party breaches the contract.
Each of these items can require separate negotiation and compromise. You need to guide these negotiations and keep the parties at the table by reminding them of the hard work they did to set aside their suspicions and hammer out a deal on the major points.
In practice, some mediators have found that the parties fail to come to agreement on these seemingly innocuous deal points unless the mediator is still there coaching and cheering them on.
Don’t author the agreement or offer legal advice. Even if you’re a lawyer, you’re not their lawyer. And if you’re not a lawyer, giving legal advice could land you in trouble for the unauthorized practice of law. If the parties are represented by legal counsel, they, not you, should draft the agreement, with you assisting them to make sure that the details won’t blow up the deal.
If the parties aren’t represented by legal counsel, you may want to be the scrivener of the deal, but they should provide you with all its terms. You can help them clarify their desires while drafting the contract and ask them questions about items they may have overlooked, but you shouldn’t be the author of the deal.