D. Principle 4: Continue to Employ the Communication and Facilitation Skills Used to Reach Initial Agreement when Drafting the Settlement Agreement

• Library: Crafting Effective Settlement Agreements: A Guidebook for Attorneys and Mediators (ABA) (2018 Ed.)

D. Principle 4: Continue to Employ the Communication and Facilitation Skills Used to Reach Initial Agreement When Drafting the Settlement Agreement

Getting former adversaries to work together can be a real challenge. But it sure beats the alternative.

Mediations may begin with all parties together in a joint session, but almost always end in separate caucuses when the mediator relays offers and counteroffers between different rooms or locations. Thus, the process of reaching the initial agreement over the amount of money to be paid or property to be transferred usually occurs without direct interaction between attorneys and the parties. However, parties and attorneys regularly reconvene in joint session to draft a settlement agreement, or at least a memorandum of understanding, even if all of their bargaining has been conducted by a mediator engaging in shuttle diplomacy.¹⁸³ Drafting a settlement agreement during a mediation session is usually an interactive process. Frequently, one attorney will type on a laptop with another attorney reading and commenting over his or her shoulder. Parties also will often be in the same room together. Whenever all parties and their attorneys can get together and communicate directly, there exists both promise and peril.

The promise of crafting a settlement agreement in joint session is that a free and frank exchange of information will identify party preferences about particular terms, yield creative solutions and acceptable compromises, and result in agreements with greater value than could otherwise be crafted merely by exchanging drafts by e-mail. Many lawsuits begin where the parties' discussions end. By contrast, there is usually a great deal of important information that can come to light during a productive conversation and which can greatly enhance the quality of the parties' settlement. Even when parties have exchanged information early in the mediation, the content almost never concerns their preferences regarding potential terms for a settlement agreement. Discussions about the scope of a release, confidentiality clause, choice of law, and enforcement mechanism seem premature in light of uncertainty about whether any deal can be reached as to the primary term, usually the amount of money to be paid.

The peril of a joint, in-person effort to draft a settlement agreement is that the communications will devolve into the same antagonism and posturing that has characterized the litigation and perhaps even most of the communications even during the mediation. The parties' initial agreement over payment or property transfer has not automatically made them agreeable. Like payment, individual terms in a settlement can be seen as a zero-sum game: adjusting a clause in favor of one party usually accrues to the disadvantage of the other party. Just as with money, negotiation over a term in a settlement agreement can be seen as a distributive task. As parties are all too aware after distributive negotiations, these back-and-forths are time-consuming and exasperating. As mediator Andy Little notes, disputes over money "are usually settled with prolonged bargaining consisting of numerous rounds of painful concessions."¹⁸⁴ Thus, mediators, attorneys, and parties should be aware that the moment of agreement on an amount to be paid from one party to another is not a moment of reconciliation.

More hard work is usually necessary to repair a relationship or to engage in nonadversarial communications.

1. The Best Deals Result from Collaboration Rather Than Combat

When tempted to fight fire with fire, remember that the Fire Department usually uses water.

—Anonymous

Settlement requires agreement, and the best agreements are forged collaboratively. There is no such...