What Paperwork Do I Need In My Mediation Business?
Like most businesses, the business of mediation involves some paperwork. Fortunately, it’s fairly light, consisting of a couple letters and a contract. Here is some guidance on preparing the paperwork you need and avoiding what you don’t need.
Create a boilerplate scheduling letter and contract that you can open and modify for specific clients and cases. If you’re not an attorney, have your attorney review all boilerplate documents to ensure that you’ve covered everything required by law and anything that’s useful to protect yourself against liability.
Write a scheduling letter
A scheduling letter gives the parties everything they need to know leading up to mediation day. In your scheduling letter, include the following information or placeholders for inserting the following information:
The date, time, and place of the mediation
Instructions about the briefing requirements
A statement that all stakeholders must be present
Your hourly or daily rate
A request that the parties pay for the anticipated half day or full day in advance
A statement regarding forfeiture of a portion of the fee if the mediation is cancelled within a certain number of days prior to the scheduled mediation
A reference to the enclosed contract and instructions to sign the contract and return it by a certain date with the advance payment
Construct a contract
Prior to any mediation, it’s good practice to have signed contracts from all parties. When drafting your contract, be sure it includes the following:
Your agreement to facilitate the settlement of the dispute on the date and at the time scheduled at the rate you charge
A statement regarding forfeiture of a portion of the fee if the mediation is cancelled within a certain number of days prior to the mediation
A choice of law provision that designates the jurisdiction in which any dispute that arises under the contract will be heard
Signature lines for both parties and their counsel (if any), along with a space to write in the date
Avoid the use of confidentiality agreements
Though some mediators provide clients with confidentiality agreements, it’s not really a good idea, especially if you’re not a lawyer. If you tell the parties that their communications are confidential when they’re really not, you become the target of a potential lawsuit. If the confidentiality agreement you draft doesn’t hold up in court, either party may claim that certain disclosures during the mediation hurt their chances for success.
In some states, like California, the statutory protection for mediation confidentiality is sufficient to impose it on the parties. Some states, however, require the parties to enter into signed agreements that reference the state’s confidentiality provisions for confidentiality protection to arise. You must know the law in your own state and in your local federal trial court district.
Leave it to the parties’ attorneys (if they have attorneys) to instruct them on the precise coverage of the confidentiality law in the state where the mediation is taking place. And remember that the law may vary based on disputes that could eventually be litigated in either a state or federal court.
If you feel that you must present the parties with a confidentiality agreement, you should brush up on confidentiality basics and draft the agreement only with qualified legal advice. If you’re an attorney, make sure you follow the current confidentiality laws in the jurisdiction in which your clients’ dispute is pending. The law is still in a state of flux and may always be.
Avoid the use of settlement agreements
A settlement agreement documents the understanding that the parties in a dispute agree on. Many mediation panels and community mediation centers have boilerplate settlement agreements. However, such agreements are not a good idea, especially if you’re not a lawyer.
Why? Because if you draft a contract for the parties or provide them with a form that you or they fill in at the mediation’s conclusion, you’re setting yourself up for a malpractice claim if the agreement is found to be unenforceable. Drafting an agreement may also constitute the unauthorized practice of law and make you subject to fines or other penalties levied by the state board of bar overseers.
Attorneys spend one full year studying contract law. Furthermore, some attorneys spend their entire careers doing nothing but litigating the meaning of ambiguous terms contained in contracts. If you’re not a lawyer and you present the parties with an unenforceable contract, you expose yourself to risk and gain nothing in return. The likelihood of being sued may be relatively low, but you’re better off avoiding the possibility altogether.
That said, closing the deal reached by the parties requires them to put the terms of their agreement in writing, a process that mediators facilitate. The parties should never leave a successful mediation without a written document that lists all the terms of their agreement, but as the mediator, you shouldn’t draft it.
Write a follow-up letter
If the mediation ends in agreement, write the parties a follow-up letter that congratulates them on successfully resolving their dispute. If the mediation ends with no agreement, write the parties a follow-up letter that congratulates them on the progress they’ve made and suggest one or more additional mediation sessions if you believe they were sufficiently close to an agreement.
You may also use this letter to ask for the payment of any outstanding fees if, for instance, you charge an hourly rate and the advance payment for your time was insufficient to cover your full fee.