By the time I reach the end of this article, some reader will have already begun typing a response. To save everyone time, let me qualify by acknowledging there are many well-founded opinions about this topic. This article only represents my observations and preference.
To a case, every time the disputants have agreed upon settlement terms, no matter how many times we recite them together, when the final agreement is drafted by the attorneys negotiations begin again over what some may consider to be minor details thus extending the dispute for additional days or weeks. One of my professors in law school made it point that lawyers often see their job as being obstacles to negotiated agreements by insisting upon terms that favor one’s own client above all others. Perhaps the point is a little extreme, but not altogether inaccurate.
I recall a mediation I conducted a while ago in which, at the end of the substantive negotiations, we continued to haggle over the use of ONE word for over an hour. In my view, the word at issue was adequately benign that it burdened no one. Nonetheless, counsel were insistent. I am observing negotiations between counsel over language in an agreement settling a very routine money settlement. The matter has been settled in substance for many weeks and payment is being delayed because lawyers want to have their way when it comes to agreement language. I watch the discussion and, frankly, am nonplussed. Because of this tendency in my lawyer colleagues, long ago I made a decision to maintain management of my mediations and from my position as a neutral, I employ a standard settlement agreement that includes all the usual terms and conditions while adding only the background detail and substantive terms. Even with this approach, the final efforts at settlement often take as long as the negotiations.
I have found that, most of the time, this approach saves a substantial amount of time and expense for the parties and since a mediator should be familiar with the law on interpretation, structure and language of a mediated agreement, I have found agreements that have been drafted primarily by a trained mediator, to be less vague and far more complete (and consequently, enforceable) than those drafted during or after the mediation by counsel. I do not mean to say that I, or any mediator, is any smarter than counsel. Rather, just as attorneys are acutely aware of the nuances of their legal specialties, so are most mediators when it comes to the language and form of a solid agreement. I have also seen mediated agreements apparently drafted by mediators that are incomprehensible messes that would be difficult for many judges to enforce.
At bottom, the mediated case belongs to the disputants. I perceive my duty as being to them and to do the best job of resolving the dispute with a meaningful, satisfactory and enforceable written settlement agreement signed by all parties. If counsel wish to proceed on their own, I step aside.
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