Are Agreements To Mediate Necessary? Yes!

Since I began mediating 12 years ago, I have made it a practice to ask parties and counsel to sign an Agreement to Mediate, usually prior to the first session. I have developed my own form agreements for different types of mediations (commercial, family, co-op, court-assigned), and use existing form agreements when I mediate for certain panels. Recently, a new-to-mediation lawyer and friend told me he believed such agreements were unnecessary and reinforce the image that lawyers only complicate everything. His surprising position made me think about my assumptions.


After re-evaluation, I have concluded that executing such an agreement is an essential first step in any mediation. It sets the tone; protects the parties from a breach of confidentiality if the mediation is not successful or if the agreed-upon resolution falls apart later on and it protects the mediator, as well as the integrity of the process. I became so impassioned about the importance of Agreements To Mediate that I managed to persuade my cowboy friend to start using them.


WHAT SHOULD BE IN AN AGREEMENT TO MEDIATE?


There is a great deal of variation in what mediators include in their Agreements To Mediate. I keep tinkering with my forms and often tailor them to particular circumstances. My Agreements are simple and relatively short (two pages, generally). I want parties not represented by counsel to find them accessible. And I prefer not to give lawyers complex documents which can lead to lengthy conversations about how to interpret or change them. I find it possible to include all that I deem important in two pages. Plus, it’s my style to be conversational, rather than formal, and brief, rather than legally exhaustive.


My agreements contain :


**a statement of the purpose of the mediation and the mediator’s role. When it seems as if it is needed or might be helpful, I read this section out loud.


** a commitment to confidentiality—a promise to keep the talks confidential and to not use them in future proceedings, as well as a promise not to subpoena the mediator or my notes.


**a statement of voluntariness and each person’s ability to end the mediation at any point. In my experience, this is a very useful provision although it is almost never utilized.


** where relevant, the fee arrangement. It is not relevant if someone not in the room is paying my fee (like a government agency whose employees are the parties or a condominium board where the parties are unit owners) or if I am working pro bono.


** non-liability of mediator for acts or omissions during the mediation.


There are many other provisions that can be included and many styles of drafting the agreements. I strongly recommend looking at a number of examples in order to develop a form(s) that reflects your approach. You can find them by asking colleagues and by googling “Agreement To Mediate “.


WHY IS IT SO IMPORTANT?


My practice is to inform the parties that I require that an agreement be signed. Rarely does anyone object. I generally send them a draft copy in advance of the first session and ask them to review it for any errors (have I spelled a name incorrectly or left out anyone who will be at the table) and to see if they have questions or concerns. Once in a great while they do, and we deal with their concerns before the first session. Sometimes I decide not to send it in advance—usually in matrimonial and other family matters when the parties are unrepresented at the sessions and seem very upset. In these cases I tell them that I will have such an agreement for them to sign, present it to them at the first session and generally give them a copy to take which they can sign at the second session.


At the first (often the only) session, I read or summarize or allude to the Agreement To Mediate, pointing out that it is a contract. This helps focus people and get them to take the prospect of mediating more seriously. It is also an excellent opportunity to talk about confidentiality and its limits (especially in mediations conducted by a government agency or corporation where several people will know that the mediation took place and will see any resulting document). It provides an opportunity for the parties to ask questions or express concerns about the upcoming sessions. And it is an opportunity to demonstrate that I hear them and take these concerns seriously.


The agreement offers protection to everyone concerned. Having a written commitment to confidentiality, I believe, deters the parties from breaching the trust which is so essential to successful mediation. Simply stating that the parties will not attempt to subpoena the mediator should have a similar deterrent effect. And the document offers a legal protection for the mediator, should anyone try to subpoena her/him to talk about a mediation session. This happens only rarely, and never to me so far, but it has happened and it is wise to have the protection.


Finally, a clear statement of the fee arrangement—the basis and when payment is to be made—can only help avoid any misunderstandings. The commitment to pay is one that I have not had to invoke, but it is good to have it. There are so many reasons why beginning a mediation session with the signing of an Agreement To Mediate makes sense. Being trained to see the other side of any position, I have searched for reasons why it might be preferable to not do so. In all fairness, I could not find any compelling ones. I don’t see a downside.


                        author

Nancy Kramer

  Nancy Kramer is a mediator, attorney and arbitrator who mediates on a variety of matters including employment, commercial, family, personal injury and co-op/condo. She serves on numerous mediation panels, including those of the American Arbitration Association (AAA), US Postal Service, US Federal Occupational Safety (FOH) and New Jersey Superior Courts, as… MORE >

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