Ten Guidelines for Writing an Effective Agreement

Here are ten simple guidelines to keep in mind as you work with the other party and the mediator to draft your settlement agreement. Fol­lowing these rules will help you produce a document that is understand­able, thorough, and forward-looking.

1. Be an Active Participant

Whether your case is large or small, take an active role in helping to write your mediation agreement. You might volunteer to write the first draft of the agreement yourself—this will give you a great opportunity to make sure the agreement reflects your views. Even if you don’t get to write the agreement, make sure to offer your two cents on what the agreement should include. It’s a lot easier to influence the final agree­ment if you participate in the drafting than if you sit on the sidelines.

2. Use Plain English

In a mediation agreement, legalese should be kept to a minimum. You simply don’t need to use incomprehensive gobbledygook like “the party of the first part stipulates to heretofore abrogate the prior stipulation of the parties annexed hereto as exhibit A.” Far better to use plain English, such as this: “John will cancel the agreement that he and Bill signed earlier. A copy of that agreement is attached.”

Here are examples of formal or legalistic terms that can easily be replaced by simpler words that are easier to understand.

3.

In writing the agreement, always use full names (first and last) rather than using the term “parties” or another legalistic word such as “the Claimant” or “the Respondent.” It’s true that we have had to violate this rule in this book, by referring to the people who participate in mediation as “the parties,” but that’s because we have been writing in the abstract, without real people in mind. When you write your settlement agree­ment, you will know the actual names of the people involved in the case. Use them. Real names, rather than terms like “the parties,” make an agreement much easier to read and understand.

WRONG WAY: The parties to this dispute have reached an agreement.

RIGHT WAY: Marla White and Bonnie Silverman agree.

Similarly, when naming a business corporation, use the business’s full name, such as Brannigan’s Craft Centers, Inc. If a store has branches, name the specific branch involved in the dispute.

WRONG WAY: Brannigan’s will allow leaflets to be distributed to passersby in front of its main entrance.

RIGHT WAY: The Brannigan’s Craft Centers store at 1140 Ridgeway Avenue will allow leaflets to be distributed.

Another advantage to using full names rather than terms like “the parties” or even lots of pronouns like “him,” “their,” or “its,” is that it makes each part of the agreement understandable on its own, if you ever need to discuss a provision separately.

WRONG WAY: The piano store will let him exchange his piano.

RIGHT WAY: The Hilltop Mall branch of Locke’s Pianos and Organs, lnc., will allow Richard Goldberg to exchange.

4. Specify Dates

Be sure your agreement specifies precise dates when things should happen.

WRONG WAY: The respondent, Mark Rothman, agrees to remove the rusted Chevy from his front lawn as soon as possible.

RIGHT WAY: Mark Rothman will remove the rusted Chevy from his front lawn by July 1, 2004.

WRONG WAY: The bonus to Susan Marshilock will be paid at the end of Southwest Saving’s next fiscal year.

RIGHT WAY: The bonus to Susan Marshilock will be paid on or before October 30, 2004.

5. Explain Who, What, When, Where, and How

To be clear and complete, your mediation agreement must cover every important aspect of your dispute and its resolution, beginning with the most basic issues: Who is involved in this dispute? What is the dispute about? Who is going to do what as part of resolving it? When are they going to do it? How are they going to do it? In short, the agreement (like a good news article) should answer the five key questions of who, what, when, where, and how.

EXAMPLE: [Who] Locke’s Pianos and Organs, Inc., will allow [who] Richard Goldberg to [what] exchange his Yamaha U-131 model console piano for any piano currently in stock of equal or greater value. The value of the Yamaha U-131 piano is $6,300. The exchange can be made [when] during regular business hours until August 4, 2004 [where] at Locke’s main showroom, 1330 Washington Street, Heneson, Pennsylvania. [How] Locke’s store manager, Suzannah Locke, will make herself available to help in the exchange.

6. List Each Key Provision Separately

Your agreement will probably require each of you to do certain things. To keep the agreement clear and understandable, it’s best to state each significant action in a separate, numbered paragraph. An agreement organized in this bite-sized way is far less likely to be misinterpreted than an agreement that’s crammed into several long paragraphs. In addition, using single-subject numbered paragraphs makes it much easier to discuss problems in interpreting or living up to the agreement’s provisions.

WRONG WAY: The Turims agree to keep their dog confined to their house, and the Hershmans agree to instruct their children not to throw things into the dog’s enclosed run. The dog will be enrolled in an obedience school and they will keep it confined when they’re not home, and their children will not tease the dog.

RIGHT WAY:

• Larry and Amy Turim agree to begin immediately keeping their dog, Tammy, confined to the house after 6 p.m.

• Larry and Amy Turim agree to enroll their dog, Tammy, in the Canine Obedience School of the Livingston County Humane Society for the next available program beginning after September 1, 2004 and to take the dog to each class of the program.

• Jacob and Marie Hershman agree to immediately instruct their children, Sarah and Valerie, not to tease the Turim’s dog, Tammy, and particularly not to throw any items into the dog’s enclosed run.

7. Specify Method and Details of Any Payment

Many mediation agreements call for one person to pay money to the other. When this occurs, follow a simple rule: Spell out every detail.

Your agreement should state exactly who is to pay how much to whom, when, and in what form (check, money order, cash). If more than one payment is involved, the agreement should also say what will happen if a payment is missed. Will there be a late fee and interest on that install­ment? Will the whole debt become due, allowing the creditor to sue and get a judgment immediately?

0 Don't take a rubber check. If you are dealing with a person or small business that may have trouble meeting its obligations, insist on payment by money order, certified bank check, or, if you are a business, credit card. This is standard business practice and shouldn’t be a prob­lem. On the other hand, if you are confident that the other party will pay, there’s no need to insist on a money order or certified check (and it might even insult the other party).

WRONG WAY: Ralph Edwards agrees to pay Frank Richardson the sum of $845.

RIGHT WAY: Ralph Edwards will pay to Frank Richardson the sum of $845 by money order or certified bank check sent by U.S. mail to Frank Richardson at 35 Eulalia Way, Coniston, South Dakota 57453, by February 3, 2005.

8. Do Not Involve Third Parties in Payments

Some mediation agreements require one party to pay money to someone who wasn’t involved in the mediation instead of paying the other party directly.

Avoid complications by making sure your mediation agreement requires the party who owes money to pay it directly to the other by an appropri­ate means (by mail or in person).

WRONG WAY: Garden Way Landscape Company agrees to pay $650 to any other landscape company Gerald Secor selects to do the work on his lawn.

RIGHT WAY: Garden Way Landscape Company agrees to return to Gerald Secor the sum of $650 by August 15, 2004.

QIf you can't pay each other, pay the mediation service. If there is so much animosity between you and the other party that you suspect you might never get paid, the agreement can require the other party to pay the mediation service on your behalf. The mediation service will receive the funds and write a check to you for the same amount. (Of course, you should check with the mediation service to make sure it will agree to act as intermediary before you put this in your agreement.)

EXAMPLE: Garden Way Landscape Co. agrees to pay Gerald Secor the sum of $650. This provision shall be satisfied by issuance of a corporate check, made payable to The Center for Dispute Settlement, Inc., and sent by U.S. mail to the Center, 87 North Clinton Ave., Rochester, NY14604, by August 15, 2004.

9. Omit Any Mention of Blame, Fault, or Guilt

One of the nicest things about settling a dispute via mediation is that, unlike court or arbitration procedures, it does away with any need to officially find fault. To keep this spirit alive, mediation agreements should never include statements that either party is “guilty,” “has behaved immor­ally,” or “has violated ethical standards.” Not only does this help each party save face, it also makes it easier for the parties to have an ongoing relation­ship, if necessary.

For example, even if it became clear during the mediation that the landlord let the plumbing break down and refused to fix it, the agree­ment should not state that the landlord was “lazy,” “negligent,” or even “wrong.” Instead, the agreement should just spell out what the landlord agrees to do in the future.

WRONG WAY: “Whereas Francis Riley, manager of the Seneca Tower Apart­ments, failed to keep the piping to the apartment of Mr. and Mrs. Lester Aggazis adequately insulated against freezing temperatures...”

RIGHT WAY: “Mr. Francis Riley, manager of the Seneca Tower Apartments, agrees to repair all piping necessary to the proper functioning of the bathtub, shower, sink, and toilet in the master bathroom of Apartment 7-C, occupied by Mr. and Mrs. Lester Aggazis. Mr. Riley agrees to complete these repairs by 5 p.m. on June 3, 2004. If plumbing problems recur in the future, Mr. Riley agrees to arrange for repair within 12 hours of being notified of the problem.”

Apologies are okay. Though words of blame do not belong in the agreement, a written apology for past conduct is often a key part of the settlement. In these cases, the apology must be included. For example, when a respectable middle-aged African-American man was falsely arrested for shoplifting, mediation with the store resulted in a cash settlement and a promise of a written apology from the store manager. Because the man would not have made the agreement without the promise of a written apology, it had to be either included in the agreement or prepared separately and referred to in the agreement.

10. Guard Against Conflicts in Interpreting Mediation Agreements

Despite everyone’s best efforts to draft a clear mediation agreement, it is always possible that a question will arise in the future about who was supposed to do what, or when. Or, the other party may fail to live up to his or her part of the agreement. How will these new disputes be resolved?

As you may have guessed, we think that the best way to handle any problems and avoid future lawsuits is to make the final provision of your agreement a mediation clause, in which everyone agrees to return to mediation if problems or new issues arise. It should clearly detail who will provide the mediation, the timing of the process, and how fees will be shared. Usually, it’s most efficient to simply name the same mediator or mediation service that handled the original dispute; it will be easier for them to reopen the file than it would be for another mediator to start from scratch.

SAMPLE MEDIATION CLAUSE: If any dispute arises out of, or relates to, this agreement or its performance, that Charles Washington and Everett Boyd cannot resolve through negotiation, Mr. Washington and Mr. Boyd agree to try to settle the dispute by mediation through the Minneapolis Mediation Network, Inc., before resorting to arbitration, litigation, or any other legal remedy. The costs of the mediation will be shared equally by Mr. Washington and Mr. Boyd.

You may want to take the additional step of referring disputes that can’t be settled through mediation to binding arbitration. This is done through a clause requiring mediation and arbitration as a two-step process. Agreeing to binding arbitration assures that the dispute will be resolved reasonably quickly and privately, one way or the other. How­ever, arbitration is usually a win-lose proposition and you can never be absolutely sure if you will prevail.

SAMPLE MEDIATION CLAUSE:

[Step One: Mediation] If a dispute arises out of, or relates to, this agreement or its performance, that Irina Sungren and Susan London cannot resolve through negotiation, Ms. Sungren and Ms. London agree to try to settle it by mediation at the Minneapolis Mediation Network, Inc., before resorting to arbitration, litigation, or any other legal remedy.

[Step Two: Arbitration] If the dispute is not resolved in mediation within 90 days of its referral to the Minneapolis Mediation Network, Inc., Ms. Sungren and Ms. London agree to submit it to binding arbitration by the American Arbitration Association, Inc., and agree that judgment upon the award made by the arbitrator may be entered in any court having jurisdiction.

Fees for mediation and arbitration will be shared equally by Ms. Sungren and Ms. London.

C.