In an article entitled “Young Lawyers: Drafting a Mediation Settlement that Avoids Future Litigation” appearing in the American Bar Association’s Section of Litigation, Litigation Update, Jean Baker, Esq. notes that parties go to mediation to avoid litigation: thus the settlement agreement used to memorialize a successful mediation should be drafted with care so that the parties do not end up back in litigation.
In my own mediation practice, I have often witnessed that after successfully resolving the issues during a 4, 5, 6 or 7 hour period, the parties then turn their attention to the settlement agreement and its language for the very first time. As a consequence, the parties (already tired from an already long day and anxious to leave my office), spend another 1 or 2 or more hours drafting and negotiating the provisions in the agreement, and calling their offices to obtain certain key language (e.g. releases or confidentiality provisions) to be used. Needless to say, at this point in the day, the parties are not always as focused as they should or need to be and perhaps are not paying as much attention to crucial details as they should or need to be.
To avoid drafting a settlement agreement in a rush after a successful mediation, think about its contents ahead of time. Well prior to the mediation, outline not only the issues that need to be resolved in the mediation but the crucial (and perhaps not so crucial but standard) terms of any settlement agreement. Think about the needs and interests of your side of the table: are they reflected in any potential language that you may want to propose as part of a settlement agreement? Give some thought to foreseeable contingencies that may arise and again, draft some proposed provisions that will cover these contingencies.
At the time of the mediation, bring the draft or proposed settlement agreement with you. Since mediators are “neutrals,” they do not participate in the actual drafting of the settlement agreement other than to assist the parties in negotiating the terms or language. That is, mediators do not draft the settlement agreement but assist the parties in doing so. In short, the memorialization of the settlement will be hastened by the parties bringing drafts of proposed agreements with them and sharing them with the mediator and the other parties.
By thinking ahead about what should be included in the settlement agreement and bringing a draft with you, the additional 1-2 hours of time mentioned in my example above, can be reduced to 15 – 30 minutes.
So. . . be optimistic. . . approach every mediation with the view that the dispute will settle and think ahead about what terms should be in the agreement. Bring a draft of one with you to share with both the mediator and the other parties, and thereby, speed up the process of documenting a successful mediation.
. . . Just something to think about.