What makes an agreement effective? What can the mediator include that will help to ensure that the agreement is lasting, realistic, and appropriate? What should parties seek to include to help them implement the agreement in good faith?
While each mediation is different, a good rule of thumb to follow is to make the agreement as specific as possible, so the parties know exactly what responsibilities they have accepted, and how they are expected to act in the future. Specific means including dates, times, exact amounts, methods of exchange, potential remedies, and a host of other concerns that may seem like overkill in the mediation.
However, including these kinds of details minimizes potential confusion in the future, and also makes it difficult to disagree over the meaning of certain terms in the agreement later. For example, in a divorce mediation, it's very important to specify how much support will be paid, by whom, at what point each month (every second Tuesday, or bi-weekly?), and by what method (electronic transfer or check?). These are the sorts of points that can ruin a carefully crafted agreement, simply because the parties have no clear way to move forward.
It behooves the mediator and the parties to consider exactly how the agreement will work after the mediation is over - after all, the mediation is supposed to be a forum for the resolution of issues, not the creation of new ones. A tailored, specific agreement helps to curtail future problems by clearly addressing exactly how the agreement will be implemented, and how each party will abide by the terms of the agreement.
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Makes sense... more specificity equals less ambiguity. Better safe than sorry; get all those nitty gritty details written down.
ReplyDeleteBut might there also be a tradeoff too? If it takes a long time to capture all the extra details, I would think it would would increase the length (and cost) of the mediation process itself. Seems like there might be a point where the added cost of capturing the extra details overshadows the potential savings you'd see in the future by avoiding confusion.
Then again, maybe the added cost of a longer mediation is a small price to pay for peace of mind, knowing that there's less chance for disputing the terms of the agreement down the road. Hmm...
Thank you for your thoughtful comment. I think it's really a balance - be thoughtful about potential issues but don't dwell on things that are unlikely to happen. So far, I've found that a few extra sentences about exactly how the agreement will work save much more time than they cost. Thanks for your feedback!
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