Make Sure the Mediated Deal is Durable
A mediation agreement is durable and enforceable when the parties are satisfied with the outcome. To ensure that the deal the parties reach is truly satisfactory to them:
Talk to the parties to ascertain whether they have reservations about the proposed settlement. You’d be surprised how many deals are brokered by attorneys and then presented to the parties as a fait accompli.
As a result, both parties usually have lingering reservations and disdain for each other. You don’t want to get between the attorneys and their clients, so tell the attorneys you’d like to make sure everyone is on the same page before presuming to talk with their clients again about the deal points.
Listen to the parties’ story regardless of whether you believe it’s relevant to the settlement. Parties who leave the mediation still feeling that they’re the victims of a grinding injustice are highly likely to resist enforcement of the deal.
Parties typically honor agreements because they feel obligated to do what’s right, not because they’re threatened by the prospect of litigation. When parties feel as though they’ve been bullied into submission or presented with nothing better than a last and final offer, they can and often do find ways to initiate or prolong litigation.
Each jurisdiction has different laws that govern the enforceability of agreements reached in mediation. Because of the prevalence of postmediation buyer’s remorse, it’s not uncommon for one party to claim that the agreement reached isn’t enforceable and that his adversary may not introduce written evidence or oral testimony to “prove up” the contract because everything said and done during a mediation is confidential.
However, the confidentiality rule usually has an important exception — that the parties have a right to prove, in writing, that they reached an enforceable agreement. Make sure you know what the requirements of that exception are.
Even in litigated cases, attorneys are often unfamiliar with the statutory requirements or the most recent appellate opinions interpreting those requirements. Let the attorneys know what you know, coupled with the warning that, as a mediator, you’re not permitted to give legal advice, and you expect the attorneys to advise their clients of the law’s requirements.
If it appears to you that the attorneys are unfamiliar with the law, suggest that they check it out before leaving the mediation with a written agreement you believe may well not be enforceable.