One of the key roles of a mediator is to ensure that any proposed settlement will actually work. The last thing the parties want is to find themselves back in dispute about what they have agreed or how the agreement is to be implemented. It can be disheartening for the parties to feel they have reached agreement only for it to be undermined on detailed examination but this is far better than the alternative.
This topic is considered in a new post by Stephanie Singer, co-editor-in-chief of the Harvard Negotiation Law Review entitled Making Settlements Stick: How to Encourage Compliance with Mediated Agreements. Some of the proposals would not be controversial in a British mediation. Remaining impartial, encouraging active participation and letting the parties take the lead are methods most mediators would try to employ.
Remaining impartial might sound obvious but it includes more subtle manifestations of impartiality such ensuring each side feels it has had full opportunity to tell their story and each party is accorded the same high level of respect. Nurturing participation by each side in the design of the settlement will encourage compliance with it and letting them take the lead, rather than proposing or supporting a particular solution will mean parties are unlikely to feel coerced into the settlement.
What mediators may object to is the proposal that the mediator should draft the settlement (if permitted by law), this prevents a single drafting party influencing the settlement with last minute biased wording. I expressly advise my clients before a mediation that the drafting of any settlement is their responsibility and I try and encourage them to at least consider the form any settlement might take in advance. Difficulties arise when one or more parties are not legally represented.
As a mediator do you think you should be involved in drafting the agreement?
As a mediation user do you expect the mediator to draft the agreement?
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