Agreement Writing
Mediated agreements should be balanced, detailed, and durable.
In mediations where participants resolve their dispute, the mediator drafts a written agreement, spelling out in detail what each party is willing to do to resolve the conflict and to prevent further problems. A durable agreement is a realistic agreement. In other words, the best agreements are those that meet everyone’s needs in the most achievable way.
Mediators must be careful not to impose their own standards on the agreement. If both parties freely agree to a solution with full awareness, then it is workable for them. Mediators help the participants write an agreement that addresses how their intentions will be implemented, making it easier for them to keep their promises.
Take the time to ensure that the participants feel comfortable with the agreements they are making. Listen closely and watch body language for clues to how people are really feeling about each issue in the agreement. If you sense reluctance, invite that person to talk about concerns. Make sure each participant is in full agreement with each point and feels comfortable that it is just and reasonable.
All participants should contribute to the formation of the agreement. If one person tends to agree to whatever the other person suggests, an unbalanced agreement may result. Do not allow one person to dominate or to make all the suggestions. Often the more accommodating party will later regret having made so many concessions, and the agreement may break down. To help a disputant move from accommodation to collaboration: Ask the accommodating party to speak first on an issue. When agreement seems to come too quickly, ask the participant how the idea would work out in practice. “You’ve offered to repair the fence tomorrow. Will that give you enough time to buy the materials and have enough time to do the work?” “What will you do if you run into unforeseen problems?”
If the parties cannot agree on what would be fair, they may be able to agree on an objective standard to use to measure fairness. They could agree to consult an authoritative source or to conform to some current practice in similar situations, such as the Blue Book value for a car or an appraisal by a licensed professional.
Attempt to balance the agreement so that each person is agreeing to do something. Number each point and alternate what each participant is willing to do.
Writing a Workable Agreement
After the participants have reached consensus on resolution, the mediators then draft an agreement. This document is similar to an action plan that sets out how each of the issues in dispute is to be resolved. When preparing the agreement try to follow these important elements:
Number each agreement point/paragraph. Go to a new number for each issue being addressed.
Be specific about what the parties agree to do. Include details of who will do what and when, where and how. Avoid ambiguous words such as “soon”, “reasonable”, “cooperative”, “neighborly”, and “quiet.”
Use clear simple language. The agreement should be easily understandable and use the participants’ own words whenever possible.
Be balanced. Each participant should give something, and each should gain something. One person’s actions should not be contingent on the other. Use language such as “Lyle will do X on Mondays and Sarah will do Y on Tuesdays”, instead of “Lyle will do X if Sarah does Y.”
Be positive. Whenever possible, phrase the points of agreement in terms of what participants will do in the future rather than in terms of what they won’t do, or will stop doing. “Don’ts” often feel like judgments or criticisms.
Make agreements that bind the participants only. Third parties, even those affected by the agreement, should not be included unless they are present in the mediation (this can sometimes be done through a phone call).
Provide for the future. Encourage the participants to think about a way to communicate if there are more problems, e.g., “Parties agree to meet in mediation should problems arise in completing their agreed upon terms.”
Dispose of related court cases. If anyone involved in the dispute has filed legal documents with the courts, the agreement states what should happen, e.g., “Parties agree to drop court cases concerning these issues.” For the courts, the language is embedded in the agreement and the mediator should check the applicable box.
Read the agreement to the participants. Some people have difficulty reading. Others are auditory learners, so it is best to read the agreement aloud to all.
Have the participants sign the agreement. Each party to the mediation has a stake in the terms and conditions. After the mediator reads the agreement, each participant should acknowledge responsibility for making the settlement work by signing it. Mediators do not sign the agreement. Once the participants have signed, all parties receive a copy for their records.
The mediator should conclude by thanking parties for their efforts.
Testing the Agreement
Primary Objective: A balanced, durable, mutually satisfying agreement.
Ownership: What do the participants want it to say? Specificity: What details need to be there?
Durability: What stands in the way of its working?
Acceptability: Does each participant understand and agree to each point?
Other considerations prior to drafting and signing:
“Have you considered having an attorney look over your agreement?”
“Have you thought about getting legal advice on the issue?”
“It sounds as though you need more information. Would you agree to find that information, and then we will schedule another session?”
“Do you think this option should be tested for a few weeks to see if it will work?”
“Do you feel that you are able to meet the timelines in this agreement?”
“What will you do if any part of this agreement cannot be fulfilled?”
“Is the monthly payment amount reasonable for you based on your current financial situation?”
“How will you feel about this agreement in a month, a year, five years?”
Additional Thinking by Monica Kales - via email in early 2021
Here some important housekeeping points on writing agreements.
1) At the beginning of every agreement, make sure to include a sentence stating what the case is about, for example:
a. “Plaintiff and Defendant (please use their names) have agreed that defendant owes plaintiff $500 for back rent.” Again, please do not use the words plaintiff and defendant; we get better buy in using their actual names and want to avoid legalese when we can to keep the agreements simple.
b. “P & D (using names) have agreed that defendant will pay plaintiff $1000 to cover damages to P’s auto caused by faulty repairs.”
c. “Defendant agrees that she owes Plaintiff $1500 for wages not paid per employment contract.”
d. “On behalf of ABC Company, John Manager agrees to compensate Joe Customer $1200 for medical expenses incurred as a result of an injury sustained on ABC Company property.”
2) Please remember to read the full agreement to the parties, including the boiler plate paragraph at the end of the Order after Mediation, and get verbal agreement to all terms and verbiage before letting the parties go. Remember, it’s their agreement, not ours.
3) At the end of every agreement, please include a sentence stating, “The terms of this agreement were agreed to by all parties via virtual mediation today.”
Agreements cannot be changed after the fact unless all parties agree to reconvene to revise the agreement. Be sure to reality test and clarify all terms as they are negotiated throughout the session to help avoid the need to reconvene. Having to reconvene could potentially cause an agreement to fall apart and the parties to end up needing a trial.