Writing the Agreement

Because business issues tend to be complicated, and business people are prone to rely on the literal language of contracts in a later dispute, it’s especially important that your agreement be clear and complete.

Typically, you will reach a settlement after a long day of mediation, and you will leave the room with only an outline or rough draft of the agreement, initialed by both parties and the mediator. If your mediation ends like this, be ready for days or possibly weeks of phone calls, faxes, and email messages back and forth as lawyers or other advisers for both sides help work out the final language. You may even need to reconvene the mediation for a follow-up session to get the mediator’s help in ironing out the final wording. As the saying goes, “The devil is in the details.”

It is also fairly common for an agreement to start to unravel during the final drafting stage, as one or both parties is influenced by others who were not at the mediation, or simply has legitimate second thoughts about some aspect of the pending settlement. Don’t despair. This kind of “backsliding” is fairly typical and does not mean all your hard work has been for naught. Go back and mediate some more. After all, fighting over details may even be a good thing if it forces both parties to get the final settlement agreement exactly right.

G.