Several years ago, I attended a seminar where a lawyer mentioned that she always prepared a draft settlement agreement before every mediation. Over the last several years, I’ve tried to take this approach when I represent a party and sometimes when I’m the mediator if I have enough information to figure out where certain assets are going to fall.
Drafting in advance can save so much time for the parties and the mediator. A party can have in place all the language that they are comfortable with in place. It is also a very helpful checklist of all the issues that you think are in play. In one or two cases I’ve actually forgotten about a minor issue, but when I tendered my draft proposal to the mediator it reminded me that I needed to work out that issue. I deal with a number of lawyers on a regular basis where we have cases where we on opposite sides, but I also mediate their cases or they mediate my cases from time to time. By now, they have seen my standard language on particular issues and know that there are no surprises. It also gives the client peace of mind knowing that their lawyer principally drafted the agreement. Of course, there is always the consideration that any ambiguities will be interpreted against the drafter unless you have language expressly saying to the contrary
It seems that whenever the parties feel that they generally have an agreement that everyone is then rushing to get things done, especially at the end of the day. That is the time when I am most concerned about mistakes being made. The mediator has to keep track of everyone’s position and sometimes there can be very subtle differences on what a party thinks they are agreeing to and what they are not. Ultimately, however, it is the party’s responsibility to make sure that the mediation agreement contains everything.