Closing and the Mediated Agreement

The mediator has several duties to persons who have engaged his/her services.  The mediator must, by all means, be able to determine whether or not the mediation is progressing.  If it is not, the mediator must determine the reason and act appropriately thereupon.  One overarching duty of the mediator is the mediator’s commitment to be the last person to leave the mediation.  If the mediator gives up he is breaching his duty to provide the services for which he was engaged.

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On the other hand, if the parties have reached an unbridgeable impasse and have determined that they want to terminate the mediation, after reasonable endeavors to problem solve, the mediator should comply with the wishes of the parties.  Notwithstanding the fact that the parties to mediation are in no way imprisoned, the mediator should do everything in her power to cope with and overcome emotional outbreaks and reactions.  Many times parties to mediation will walk out for affect.  In those cases a simple inquiry by the mediator and, perhaps, quiet reasoning with that individual in private will bring them back into the mediation ready to negotiate further.

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In the event that the parties determine that the mediation must at least be suspended, in closing the mediator should encourage continued effort and try to arrange for another session.  On the other hand, if the emotions are too high the mediator should, in the very least, follow-up within a day or so by telephone or whatever means of immediate communication is available to her.  As long as the mediator remains in communication with the parties without allowing a 10 day lapse of time between contacts, the mediation is continuing.  In the situation where the parties have determined that the mediation is over, part of the mediator’s obligation is to close the mediation in writing.  A simple letter stating something to the effect that the parties have chosen to end the mediation on (date) and by this Notice the mediation is officially closed.  In California court mediations the mediator is required to file with the court a Notice of Agreement or Non-Agreement (a Judicial Council form).  The one that form is served upon the parties and filed with the court, it serves as an official notice that the mediation has ended.

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If the mediation has ended with a partial agreement the mediator should insist upon a bare-bones agreement using the necessary language for enforcement and admissibility that is to be signed by all parties to the mediation.  In the event that actual parties are not present, those who are present should sign the document under the terms of the CA Civil Code §1717 indicating that it is a contract between the parties for which attorneys, fees are recoverable in the case of breach.  CCP §664.6 provides for summary enforcement but the actual parties— ALL actual parties— my sign the agreement.  Otherwise the agreement is unenforceable under the terms of 664.6.  Also, the agreement must state all material terms just as any other contract is required to do.  If the parties to the mediation leave without signing at least an informal agreement, the mediator should consider that there is no agreement.

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Most experienced mediators insist that there be “ink on paper” before the session adjourns.  Without fulfilling this duty, the mediator may face the situation encountered by many beginning mediators, i.e., that one of the parties suffers “buyer’s remorse” and chooses to back out of the agreement.

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Thus, the mediator should always confer with counsel as a mediation comes to a close to create an informal mediated agreement, whether full or partial, and explain to counsel the reasoning.  As the neutral and the only party who actually sees what is going on in the entire process, the mediator has to be the eyes, ears and brains for all of the attorneys and participants.

                       

Donald Cripe

Donald Cripe is a Law Professor (Mediation/ADR), Univ. of La Verne College of Law; Superior Court Judicial Arbitrator since 1996—having conducted several hundred arbitrations; Settlement Judge since 1996; Family Law Mediator-Riverside Superior Court Mandatory Dispute Resolution Conference Program; General Mediator-Dispute Resolution Services, Riverside; Civil Mediator- Riverside County Superior Court; Riverside… MORE >