By Lisa Dasher, Alternative Dispute Resolution Committee co-chair
Let’s talk about drafting a mediation agreement.
How do you view the mediator’s role? Is the mediator the author or the scribe? Wanting the matter resolved, mediators often write what they believe to be the agreement reached by the parties.
A mediator often is asked to use “standard language.” But the mediator may not be able to determine whose “standard language” is being requested. As there are as many ways to draft terms as there are attorneys, it is difficult to know whose “standard language” to use.
Using information that all attorneys have access to provides a common language, such as the third amended administrative order 95-16, Family Law 4th Judicial Circuit Timesharing Guidelines (Local and Long Distance). These are used, in part or in whole, when negotiating and drafting a timesharing schedule.
Not every attorney knows everything, and neither does every mediator. One person may have served in the military while another’s first career was as a registered nurse. This can be a major stumbling block when drafting an agreement.
If an attorney is not aware of a service member’s Survivor Benefit Plan, or that the retirement plan charges a fee to process a qualified domestic relations order, the attorney may be leaving money on the table, giving away his bargaining power or costing the client money.
If the appropriate language is not in an agreement, additional litigation may be necessary.
Mediation is confidential, so it is difficult to have a mediator disclose information in court. There are a plethora of Mediator Ethics Advisory Committee opinions regarding mediators giving advice, confidentiality or bringing up issues during a mediation.
It is in their clients’ best interest for counsel to bring pre-drafted language to mediation to use when drafting an agreement.
If a retirement account or pension will be divided as part of the agreement, counsel should research the plan and know the specific terms required.
Discovery plays an important role. Clients can be unwilling to work toward a resolution when all the information is not available.
Finally, proofread. After four, eight or 12 hours of mediation, everyone is tired and the client is looking at the clock and calculating the fees. Or perhaps someone needs to leave to pick up the children, attend a hearing or any number of other reasons they cannot stay until the proper agreement is drafted, edited and finalized.
When a draft is printed for review, it is truly a draft with an expectation that the attorney will carefully review the language and make appropriate edits within the document.
Mediators can feel like the driver of a school bus full of children going to Disney: “Are you done yet?”
The mediator’s job is to put on paper what the mediator believes the parties have agreed upon during the negotiation.
The draft may be written in great detail, general terms, fact-specific, formulaic or creatively, depending upon the subject matter. Counsel has the power of the red pen to customize the template to meet the needs of the clients and to ensure all issues are properly addressed.
The takeaway: It is best not to write the agreement for the parties. We should serve only as scribes. Let the parties suggest the appropriate language they want.
In my engagement letter, I ask that each party bring to the mediation the language that they want in a written settlement agreement. Lastly, once an agreement is reached, never let the parties leave without signing off on a written agreement.
Lisa Dasher is an attorney and owner of Jacksonville Family Mediation.