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Manual > 13 - Drafting the Agreement > Rely on Outside Attorneys?

Rely on Outside Attorneys?

Another alternative is for the non-lawyer mediator to rely on the drafting skill of one mediation participant's representational attorney. While this approach can certainly work, it also may create some problems in the sense that the representational attorney's drafting may be viewed as slanted in their client's favor, and additional peripheral issues may arise. Other mediation participants may, with one representational attorney doing the drafting, feel compelled to have their own attorney provide additional review, and there is a risk that the entire matter may come to be removed from mediation to the level of attorney-to-attorney communications and negotiation.

To maintain "control" over the completion of the mediation work product, and also over the mediation process, it may, thus, be advisable for the mediator, whether an attorney or not, to work with the parties to develop a final statement of their settlement.

For the non-lawyer mediator, acting as "scrivener" and without attorney assistance, the typical work product form is that of a "memorandum of understanding." While this memorandum can be as detailed and sophisticated as a settlement agreement, it should have certain indications that it is not itself intended as the final drafting of the parties' legal settlement agreement.

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