Sometimes, as a result of a mediated conversation, a conflict is resolved when participants experience a breakthrough leading to authentic understanding. More often, there isn’t a tidal tone shift, but parties are at least able to reach concrete improvements to their future working relationship. Wherever a resolution lies along this spectrum, one of the mediator’s key tasks is encouraging the parties to memorialize their agreements. The following are the top four tips a mediator can use when writing an agreement in situations when one is warranted by the outcome and each party’s wishes.
1) Mutual Acceptability: An agreement is the capstone of a dialogue and negotiation process in which one of the primary goals is meeting each participant’s needs. Therefore, one of the mediator’s tasks at this stage is to ensure that the participants agree to every provision. This can be painstaking when reviewing each item and checking that the parties both understand and agree. However, it is better to fail at finalizing the agreement and call it an impasse than to assume agreement or strong-arm parties into signing an agreement to which they are not genuinely committed.
2) Thoroughness: Parties engage in mediation to move beyond issues plaguing their working relationship. Therefore, when bringing a successful mediation to closure, it is important that parties leave with an agreement that includes every important promise they made. To ensure this, write down—in your notes—every solution they reach throughout the process no matter how seemingly inconsequential. Then, at the culmination of the meeting, review the list to test whether they genuinely agree and, if so, whether they would like each given point to be included in their write-up. Finally, because it’s their document, it should use their language. To do this, you might say, “I noted earlier that you agreed to get input from each other before responding to a customer complaint. How would you like to word that in your agreement?”
3) Durability: Effective mediated agreements are self-reinforcing because they ensure that one party gives something of value in exchange for something from the other person. Such contract-like documents are likely to be successful because both sides have an interest in fulfilling their obligations to ensure their own needs are met.
The mediator should also consider a related durability issue: contingencies. To help prevent the situation from slipping rapidly back into conflict when the parties have future challenges, you can serve as a benign stress tester by asking “what if?” questions. From the ensuing conversation, you can capture and write down ways that they can address such problems.
4) Balance: The final language should reflect balance in two ways. First, to minimize resentments about fairness, the document should demonstrate that each person has made genuine commitments to the other(s). This is true even if one person is, in actuality, taking more steps to resolve the situation. Second, balance can be reflected in the back-and-forth wording of the document (e.g. Carlos will do X, and then Mona will do Y”). In other words, strive to ensure that the agreement isn’t a lopsided list of things one party will do to make amends.
More harm may be done to a working relationship if mediated promises are broken in the future than if no agreements are reached at all. So, no matter how pleased the parties—or the mediator—are when the process concludes, never shy from asking, “Do you really want to commit to this?”
Written agreements are an imprecise reflection of the deep changes that occur among many participants. Still, when points are captured, they serve as a reminder to parties about their intentions to improve things, as well as their specific commitments. Having a record also ensures follow-through and accountability when In-Accord conducts a follow-up meeting 6-8 weeks after an agreement has been achieved.
Some agreements are global and aspirational:
• Our overarching intent with these agreements is to improve our working relationship. We choose to forgive and forget accumulated issues and concentrate instead on finding joint solutions to real-time issues as they emerge.
• When bringing up difficult subject matter, we agree that it will be helpful to forewarn the other with a preface comment such as, “I am going to take a risk and bring up X.”
Other agreements are concrete and tangible:
• Within one week of the monthly meeting, Misty agrees to share the minutes with Fehim and underscore any actionable items that pertain to him.
• To enhance communication flow and joint involvement in certain decision-making areas, Ezra will copy emails to Valerie that involve a) Setting up meetings to review the Case Management process, b) Arranging site visits by management-level employees, and c) Issues involving personnel concerns that might lead to disciplinary action.
A comprehensive, cross-border settlement in principle addressing all major terms has been reached through mediation in the Pet Food Multi-District Litigation. While approval of a definitive settlement agreement is required,...By Keith Seat