The Monday Morning Quarterback
In most mediations, everyone is present in person who needs to be there. By the time the negotiations have completed and the agreement has been drafted, everyone who should sign is there to sign and signs. The parties thus have a complete agreement that is usually final, binding, enforceable and admissible in court for purposes of enforcement.
Sometimes, a party who needs to participate in the proceedings is only available by telephone. But if he or she actually participates in the negotiations, and is either available to sign by fax, or there is a written power of attorney so someone else can sign on his or her behalf, everyone can reach the same outcome as above, with a final and binding written agreement.
The point is this: When someone participates actively in the mediation process, understands the ebbs and flows of the discussions, the pressure points, the concessions and the refusals, the rationale for the agreement will have made sense and there will be a much greater chance that all will be well once the agreement is reached and documented.
On the other hand, if a party who needs to be there and sign is completely absent from the proceedings, and does not participate at all in the process, there is a much greater chance that the negotiated deal, if there is one, will fall apart when that person encounters the settlement agreement presented to him or her as a fait accompli.
In that instance, the missing person becomes “the Monday morning quarterback,” defined as “a person who criticizes or suggests alternative courses of action from a position of hindsight after the event in question.” See, http://www.thefreedictionary.com/Monday+morning+quarterback
Notwithstanding the often heard prompt from those parties present that “I will explain everything – there is nothing to worry about – he or she will sign,” the end result sometimes is that the missing party simply refuses to sign and there is no deal. In such an instance, the disappointment is palpable after so much work, so many concessions on all sides, and so much extra time and effort to document the deal in anticipation of everyone signing.
Education and advance planning are key to avoiding this problem. Parties must understand the importance of that person participating, and preferably in person. Often there is a fear that the individual will inflame the emotions of the day if present and thus sabotage the negotiations, but the reality is that the mediator can better manage those emotions if the mediator and that person can be present together. In that way, if there is a deal to be had, it can become a complete agreement of the parties.