Changing Your Agreement

Even the most thoughtful and well-drafted mediation agreements may need to be modified if later events make the terms irrelevant or impos­sible to perform. As a general rule, the more an agreement depends on things that haven’t happened yet, the more likely it is to unravel.

EXAMPLE: Marcia was fired from her job as restaurant manager at a hotel. Believing she had been dismissed for inappropriate reasons, she filed a wrongful termination lawsuit against the hotel. To avoid a full-scale court battle, the hotel’s lawyer and Marcia and her lawyer agreed to try to mediate a solution. Following a full day of mediation, they reached an agreement to rehire Marcia at her former position for a trial period of six months, after which she would be evaluated and considered for permanent reinstatement. Marcia’s lawsuit would remain inactive pending completion of the six-month period.

Three weeks after the agreement is made, Marcia’s husband learns that he will be transferred to a new job out of state, which makes Marcia’s agreement with the hotel unworkable. Though the hotel might have taken the position that it had complied with its end of the agreement and would do no more, it decided instead (for the practical reason of avoiding a likely lawsuit from Marcia) to attend another mediation session. The result was a new agreement in which the hotel agreed to pay Marcia a sum of money to cover most of the time she missed from work, and to give her a favorable letter of recommendation.

EXAMPLE: Two teenage boys were arrested and charged with breaking antennas and hood ornaments off cars at an auto dealer’s lot. As part of a mediated agreement, the dealer agreed to drop charges if the boys would perform 40 hours of work without pay at his dealership on weekends.

Soon after, however, the owner learned that his insurance coverage prevents anyone under the age of 18 from working on the lot. He informed the media­tion center and suggested, as an alternative, that the teens could perform 40 hours of community service at a local camp for disabled children. The boys agreed to the change. The center staff circulated a memo to both sides, got their signatures, and the agreement was officially amended.

EXAMPLE: A general contractor caught a subcontractor stealing lumber. In a mediated agreement, the subcontractor agreed to pay back $2,500, in two monthly payments of $1,250 each. The subcontractor made the first payment on time, but then received a notice from the Internal Revenue Service demanding immediate payment of a substantial amount of back taxes. If the money wasn’t immediately forthcoming, the IRS threatened to padlock the business, which would probably force the subcontractor into bankruptcy. The subcontractor told the mediator that he could not make the second payment on time. After confer­ring with both sides and obtaining a mutual agreement to an extension of time to pay, the mediator circulated a modified agreement for signature.

1. Get Help From the Mediation Service or Mediator

If your agreement needs to be modified, the easiest way to do it is to negotiate the change yourself and put it in writing. But if you want the mediator’s help, don’t hesitate to call. While most mediation rules do not require mediators to provide follow-up assistance after a case is closed, in practice, most will be glad to help. (There may be state laws that govern modifications to child custody and visitation agreements— see Chapter 10).

a. Major Problems

If you notify your mediation service or independent mediator that you believe a major issue needs to be renegotiated in a face-to-face mediation session, they will usually contact the other party to get consent to reopen the mediation. For instance, consider the dispute in the first example, above, in which the hotel was going to rehire the restaurant manager, who then learned that her husband was being transferred to another state.

b. Minor Problems

The best way to fix minor problems with your mediated agreement is to negotiate them directly with the other side. Even if you need help from the mediator or mediation service, they can often get involved without convening another formal mediation session. Instead, the mediator or staff will conduct “telephone shuttle diplomacy” between you and the other side to work out the needed modification, then circulate an amendment to the original agreement for both of you to sign. For instance, in the second example above (concerning the teenage boys who vandalized cars), the parties had agreed that the boys would perform 40 hours of unpaid service at the dealership. When this became impossible, the dealer himself suggested the boys do community service at a camp for disabled children. To agree on this new plan, the parties didn’t need another mediation session—the principle of having the boys perform unpaid labor to compensate for past behavior remained the same. Working out the details of where and when the work would now be performed was a relatively minor issue that the center staff could handle by phone and mail.

2. Fees for Changing an Agreement

Whether you will be charged an additional fee for help changing your agreement will depend on the rules of the mediator or mediation service you used and on how much they do to help you. If the problem requires a new mediation session, you probably will be charged for the mediator’s additional time but will likely not need to pay another administrative fee. If the problem doesn’t require a new session, you will probably be charged for the mediator’s telephone time (unless it is just a few minutes), but may not be charged if the change is negotiated by a staff person.

KEEPING THE CUSTOMER SATISFIED

Why should a mediation service help you modify an agreement? For starters, most people who work in the mediation field genuinely care about providing good quality service. But beyond that, private dispute resolution companies, especially, recognize that their business's ability to attract new clients depends on their reputation for helping foster agreements that work. Mediation is a business in which providers prosper only by generating positive word of mouth.

Nonprofit community mediation centers also have a stake in your long-term satisfaction. Their ability to attract state, local, and foundation funds depends, in part, on the success or failure rate of their operations as measured by client satisfaction. Some community mediation centers even monitor closed cases to see whether agreements are working well.

The staff at court-connected mediation programs should also be willing to help you modify your agreement. Because many of these programs are pilot projects, the state agencies that fund them keep track of user satisfaction.

B.