Why You Need a Written Agreement
A written agreement that spells out the parties’ decisions, intentions, and promises for the future serves four important purposes:
• It creates a permanent record. A written agreement creates a permanent record, just in case you and the other party remember parts of the agreement differently.
Anyone who has ever referred back to a lease, contract, or other written agreement knows just how tricky memory can be. Putting it in writing will guard against future memory lapses, intentional or otherwise.• It exposes overlooked issues. Putting the terms of your agreement in writing may reveal issues or details that you overlooked during the mediation session. For example, if your business partner agrees to buy out your share of the business by making equal monthly payments over 32 months, you may realize only when you’re writing the agreement that you haven’t discussed how to handle late payments.
• It encourages compliance. When settlement terms are put in writing and signed in the presence of a mediator, disputants are far more likely to comply with them than if the agreement is left unwritten. It is customary for the mediator also to sign the agreement, a gesture that further encourages the parties to keep their word.
• It allows the agreement to be enforced. Mediation agreements are difficult, and often impossible, to enforce unless they are in writing. After all, if the other side disputes that a certain agreement was reached, how would you prove otherwise? The mediator will probably be prevented from testifying by confidentiality rules, so it will just be your word against the other party’s. To make sure that your agreement can be enforced by a court, put it in writing.
DON'T LEAVE THE MEDIATION ROOM WITHOUT SOMETHING IN WRITING
If you’ve reached a settlement in your mediation, it’s a mistake to leave drafting the agreement to another day, unless the settlement terms are so complex that an agreement can’t be prepared on the spot. And even if your settlement is complicated, you should prepare an outline of all key points before you call it a day. Delay can be dangerous. Not only does it give the other side time to have second thoughts and possibly even be persuaded by others who were not at the session—such as friends and relatives—that the agreement is not in his or her best interest, but it also allows time for each party’s memory to play tricks.
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