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Please put it in writing.

August 6, 2014

Notwithstanding my urging that the participants write it down then and there, it is surprising to me how many recent mediations have resulted in a handshake agreement at the end of the session with the written settlement agreement to follow in the next day or days.

It is not surprising to me that many (not all) of these settlements thereafter unraveled in the day or days following the negotiation.

As I have written before, people are like rubber bands. See, https://karpmediation.wordpress.com/2013/07/11/imagery-in-mediation-the-rubber-bands/

By the time they have come to a consensus on the settlement in mediation, they have stretched beyond their comfort zones to reach agreement.

In that moment, they could sign a settlement agreement … if one were ready or if everyone were present.

But they don’t, and like rubber bands stretched to their limits, sometimes people cannot sustain the tension, and they snap back to earlier positions.

That is, sometimes they have second thoughts about their concessions.

Or sometimes, there is a Monday Morning Quarterback who, absent from the negotiation, nevertheless intervenes or interferes thereafter. See, https://karpmediation.wordpress.com/2012/05/26/the-monday-morning-quarterback/

Sometimes, people depart from the negotiation (prematurely) for their own reasons, so they cannot sign … because they are not there.

Sometimes, the settlement is too complex for a handwritten, on-the-spot agreement.

That is, sometimes there is consensus on the broad strokes of the agreement, but the details are left for a later writing.

And then there is no agreement on the details.

So much hard work goes into getting the parties to agree.

Please put it in writing and get it signed on the spot if the parties are satisfied with the terms they have just negotiated.

Maybe even do a draft in advance and bring it if you have some expectation of what the details might be so there is something to work with.

You will be glad you did.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California. For further information about him and his mediation practice, please go to http://karpmediation.com .

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From → Mediation

2 Comments
  1. The only really bad experience I ever had in a mediation came when a client felt pressured to sign a settlement agreement during the mediation, then regretted signing it the next day. Though we subsequently did what we could to try to blow the deal apart during the negotiations over the long form agreement, the other side accepted our points, and my client was forced to pay a settlement amount they would have preferred not to pay. I can’t say that the client would have been better off by continuing to litigate. On the other hand, I know they were really unhappy about feeling pressured to make a deal at that particular moment.

    I have heard of at least one case of a suicide caused by a party making a deal in mediation they later regretted making, and there are also an increasing number of lawsuits brought by people attempting to set aside agreements they felt pressured to make in mediation.

    As a result, I would be cautious about recommending a hard and fast rule telling people they must always sign a binding document before they leave the mediation room. Sometimes people at the end of a long, grueling day of mediation are not in the best frame of mind to make that decision. Sometimes they need to sleep on the proposed deal. My rule is to offer people that opportunity. Yes I recognize that a valuable deal can sometimes be lost if a binding agreement is not signed at the mediation, and so I do recommend that people sign something before they leave if they want to avoid the risk of losing the deal. But I always, whether acting as an advocate or when I serve as mediator, try to check in with the parties before they put pen to paper, to get a sense of whether they are going to feel good about what they have done in the morning.

    • Hi Joe. Thanks for the comments. I’ve never heard of such a drastic result as suicide due to a mediation, and I have not seen such coercion as you suggest, yet I do know that some people regret the decisions they make at or after mediation, so I appreciate what you’ve written. I also know that many people are fully satisfied with the resolution of their disputes, do not regret their decisions, and are OK with moving on with their lives. That said, I do as you do in that I too recommend that people sign something before they leave if they want to avoid the risk of losing the deal, and I check in with them about whether or not they want to produce and sign a writing at the mediation. It would be an overstatement to suggest that I propose a hard and fast rule of ALWAYS putting something in writing, and I agree that there is no hard and fast rule that one MUST put something in writing and sign it, but I think it’s a good idea to do so if the parties have actually come to terms and are satisfied with their decisions at the mediation. Thanks again for your comments. David.

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