A frequent debate among my family law colleagues is whether one should have one’s client execute a formal agreement before concluding mediation if one has reached an agreement-in-principal during mediation. There’s no right answer to this issue–just pros and cons with each position.
The benefit of having a formal executed agreement is that it mitigates against the buyer’s-remorse effect that most mediated agreements are prone to. When a case settles in mediation it is almost always because both parties gave up on some of their goals–often quite important goals–to reach a mutually acceptable resolution. Humans in general tend to focus on what they have given up, rather than what they have gained, in reaching a compromise agreement. Because they are dealing with such emotional issues, family law litigants tend to focus on the negative even more than the average person. Allow them the night to ruminate upon what they have conceded and they are likely to decide they reached a bad agreement. Sometimes this is actually the case but generally–especially if they were represented by competent counsel–it isn’t. The risk in not creating a formal agreement for both parties to execute before the mediation concludes is that one or both parties will repudiate it before a formal agreement is executed. The expense of trial, or further mediation, then awaits.
The risk of executing a formal agreement before concluding mediation is that, in the haste to get the agreement drafted, one can forget or exclude important items. Further, if one is rushing to draft a formal agreement, or is tired from a long day of mediation while drafting the agreement, one can make errors in the drafting. Once a formal agreement is executed it is very hard to renegotiate to get items added or corrected. Thus many attorneys like to have a few days to draft the agreement to insure that nothing of importance is excluded and that the formal agreement accurately reflects the agreement reached in mediation.
It is possible to mitigate, but not eliminate, the problems inherent in drafting a formal agreement during the mediation. Beginning the drafting process in the middle of mediation reduces these risks. So does having an outline of topics that need to be addressed in each particular type of case (e.g., custody issues; property division; alimony issues) and within the case being mediated. Often a simple perusal of the pleadings can be sufficient to determine that all issues have been addressed. It also helps to have boilerplate language available to address common items such as holiday visitation, telephonic visitation, child custody restraints, or handling of children’s uncovered medical expenses. Even if such boilerplate needs to be modified for a particular case, its mere existence helps insure that common but minor topics are covered in the agreement.
My general preference is to get the agreement done at mediation. However there are common exceptions to this general preference. If I am exhausted by the time the agreement-in-principal is reached, my client risks too much by having me draft or negotiate the formal agreement that day. If I believe my client has given up too much in mediation–it happens sometimes–I might suggest waiting a day or two before executing the agreement. Typically I try to talk clients out of their buyer’s remorse, but if I believe my client conceded too much in mediation, and the client later expresses buyer’s remorse, I might note my concurrence in not entering a formal agreement on the terms reached in mediation.
There is no uniformly right or wrong answer to the question of whether one should attempt to draft and execute a formal agreement during mediation. Understanding the risks and rewards in doing so can assist in making an individualized determination as to whether one’s client should attempt to enter a formal agreement at that time or wait a few days before doing so.
In many cases, I may have promulgated a proposed settlement agreement prior to mediation. In cases in which no such document has been proffered, though, the preparation of one generally is part of the mediation preparation process — it’s a great way to understand and re-examine issues at play, to gather supporting documentation for each, and to solidify client goals as to same. Plus, if it’s my agreement format, I have a better chance of ensuring that nothing is missing. (And, since the terms have almost always come about through negotiation, I have yet to have anyone strike the anti-contra proferentem provision I generally include.)
Either way, whether it’s been formally promulgated before or whether it was drafted as part of mediation preparation, I almost always have such a document ready to go in time for mediation, and ready to be modified as the mediation progresses. Not only does this have an instrument ready with very little additional time needed, but saving different versions as we go along is a very good way to track the ebb and flow of negotiations.
You’re right, though, in that there is no one-size-fits-all approach to every single case. In many cases, it’s just not right to execute such a document on site. Still, keeping the instrument modified consistent with the terms reached at mediation avoids the focus inertia that can arise once the matter in question is no longer on the proverbial front burner. We’re all busy and human.