G. Principle 7: Instead of Adjourning after an Initial Meeting of the Minds, the Better Approach Is to Continue to Make Progress Toward a Final Agreement

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

G. Principle 7: Instead of Adjourning after an Initial Meeting of the Minds, the Better Approach Is to Continue to Make Progress toward a Final Agreement

If the world were a perfect place, you could all adjourn for a well-deserved refreshment and finish up in the morning, when you are rested. Sadly, "buyer's remorse" lurks in the heart of every settler, and allowing it any time to flourish may doom the entire enterprise.

— Cynthia Ford²³⁰

Mediations typically resolve emotional issues and oftentimes succeed only after exhausting and frustrating rounds of negotiation. A settlement agreement usually requires more than just one big agreement on the number of dollars or property to be exchanged. Instead, a final agreement is usually composed of many little agreements. When will the check be delivered? What is the exact scope of the liability release? What is the interest rate on any late payments? Compared to the first agreement on the stickiest issue, these later issues may seem rather tiny, indeed. Thus, there is often a temptation to leave these additional issues for another day. However, so long as the parties can continue to make progress toward a finalized, signed, written agreement, they should persevere. To do otherwise risks losing momentum, the efficacy of face-to-face discussions, injecting interminable procrastination, and buyer's remorse. Even if there are only two represented parties in a case, this means that there are at least four people—two parties and two attorneys—who may change their minds and undermine the deal. Thus, attorneys and mediators should persevere after initial agreement until a final settlement agreement is executed.

1. Keep Going!

Finalizing a settlement agreement often demands an unanticipated amount of emotional fortitude, energetic persistence, and intellectual rigor in drafting the terms to the satisfaction of all the parties. Once the parties arrive at an initial agreement on the amount of money to be paid, don't waste the momentum that can carry everyone to a finalized settlement. The momentum might not come again. "It is unfortunately common for the parties to leave a mediation with a 'settlement in principle' only to spend the next three months battling over the actual language of the agreement."²³¹ Adjourning a mediation session or face-to-face negotiation without a signed settlement agreement invites rounds of back-and-forth negotiations over the coming weeks or months. Even after a long negotiation that leaves everyone tired, mediation participants can write and sign settlement agreements that effectively and finally resolves the legal conflict.

Perseverance is especially worthwhile during the mediation session...