E. Principle 5: the Parties Themselves Should Be Actively Involved During the Drafting Phase

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

E. Principle 5: The Parties Themselves Should Be Actively Involved during the Drafting Phase

[I]n the United States, compliance with mediated settlement agreements is high because the parties, themselves, create the terms of the settlement agreement. Thus, enforcement proceedings are relatively rare because the parties voluntarily carry out their own agreements.

— Dr. Lorig Charkoudian¹⁹⁸

Successful mediations begin with information exchange and evolve into a process of planning for the future. During the planning process, a party "should focus on the substantive portion of the instructions on his interests, priorities, and alternatives, rather than on 'settlement points.'"¹⁹⁹ The parties' attorney provides the experience and expertise to translate a party's interests and priorities into the terms of the agreement. Thus, parties can "rely on [their attorneys] to help the[m] understand exactly what alternatives might be available, assess the interests that might be implicated, and pose questions to help the[m] think through priorities and trade-offs."²⁰⁰

When it comes to putting together a settlement agreement, a client-centric approach works best. Ideally, a settlement agreement follows the parties' opportunity to express their thoughts and concerns, occurs after all of the underlying issues were addressed and fully resolved, and reflects a process in which the parties have acknowledged their own responsibility in the dispute. As Dr. Charkoudian's research shows, participants in mediation are far more likely to achieve these goals when they craft their own solutions than when they have a judgment imposed upon them by a court.²⁰¹ There is much better chance that a case will settle when the parties themselves are actively involved.

When a case does settle, parties are more able and willing to comply with the terms of the settlement agreement when they have actively participated in the process of crafting the terms of the agreement.²⁰² In one study of community mediation, defendants who participated in mediation fully paid the amount they owed 70.6 percent of the time, whereas cases in which a judge imposed the payment obligation fully paid only 33.8 percent of the time.²⁰³ Likewise, family law litigants were substantially more likely to comply with a mediated agreement than with a court order or judgment.²⁰⁴ In part, this result is due to the fact that mediated agreements were more likely to include sufficient detail to inform the parties about how to comply.²⁰⁵

Active involvement of the parties themselves in the process of drafting an agreement may require encouragement at the moment when there is an expectation that the lawyers will take over and supply the legalese for the settlement document. Rather than marginalizing the individuals who must actually live with the agreement, "we should employ techniques which help parties talk directly with one another. This is done to encourage parties to own both the problem and the eventual solutions. In the long run, shared ownership means that the solutions are more likely to be durable. It also means that the solutions are likely to be better technical solutions."²⁰⁶ A client-centric approach that enables participation by the parties themselves does more than fulfill abstract goals of self-empowerment and self-determination. Valuing the parties' active involvement directly contributes to the workability of the solutions adopted and the continuing...