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Get it in writing, whatever “it” is!

Occasionally in mediation, a resolution will be proposed that both parties agree with, but one party can’t commit to at the time of the mediation session.  This often occurs where a defendant has less financial authority than the proposed settlement amount and needs to go back to a superior for an additional amount or where a plaintiff is awaiting the outcome of medical or other evaluation, which hasn’t come in prior to the mediation.  For whatever reason, the parties have reached what appears to be a good resolution in principal, but it will take a little more time to “seal the deal”.

A mistake that counsel often make in this situation is refusing to put anything in writing unless all parties are similarly bound by it.  There are a number of reasons to reconsider this position.

First, despite the hard work of their counsel and their agreement and understanding at the mediation that the proposed resolution is acceptable, and despite the rules of confidentiality, most parties leave a mediation and immediately discuss it with friends and/or family members who weren’t present and don’t understand the process through which the resolution was reached. Frequently, those who engage in these kinds of post-mediation discussions develop “buyer’s remorse” and question the proposed resolution.  Under this circumstance, if they are not bound to it, it can take a great deal of work to get the settlement back “on track,” even though it may be the best result under the circumstances.  It is very helpful to these parties (usually, plaintiffs and private party defendants) when facing pressures from external sources to be able to tell themselves and others that “it’s done.”  It is important for them to feel that they have made their final decision, and that the resolution is out of their hands.

Additionally, it is of great value to get the written commitment of the party unable to finalize the resolution, that they will take specific, enumerated steps to do so, within a specific time period, including a statement that they will recommend the proposal as the appropriate resolution and will use their “best efforts” to see it approved.

Another valuable effect of this kind of writing at the end of an incomplete mediation, is that it always seems to be far easier to get a financial commitment beyond the present authority or evaluation of a defendant, if it is clear that their taking that step will guarantee final resolution.

While the argument can certainly be made that this kind of agreement may be illusory, it seems to provide some kind of moral, if not legal, obligation on the parties, to bring the matter to resolution on the proposed terms.  If the matter does not conclude on the proposed terms, the momentum of the mediation is not lost and the parties can more easily return to discussions without losing face or know that they have done all they can to resolve the matter short of trial and feel more comfortable in moving forward to that end.

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March 2013

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