Last month, I wrote about memorializing agreements reached at mediation before concluding the session. This article focuses on the sufficiency of that signed agreement.
Most mediations are scheduled around meal times. They often end at lunchtime, start just after lunch or finish in time to make dinner with the family.
Our culture is consumed with food. The Super Bowl intermissions highlight how important the business of food is to the American economy. Will a $7 million, 30-second commercial really persuade consumers to buy one brand of cola over another? Apparently so.
Hunger is often a factor that can distract the patience of mediation participants. The longer the conference goes, the more distractions arise. The greater the number and intensity of these distractions, the quicker the participants want to end the mediation conference.
This danger is amplified if a settlement has been reached in principle. Often parties feel safe signing an inadequate skeletal summary of the agreement, trusting the other side to accurately remember and consummate the settlement details later. While the mediation agreement is not the release and will rarely have every detail spelled out, it should provide little room for misunderstanding.
The majority of mediation caselaw stems from disputes over mediation agreements. One example is Huntington on the Green Condominium Inc. v. Lemon Tree Condominium Inc., 874 So. 2d 1 (Fla. 5th DCA 2004).
A mediated agreement was reached between a developer and two nearby property owners. A lump sum was tendered and the two receiving parties hastily drafted a distribution provision in the agreement. Lemon Tree was to receive an additional portion for the cost of building of a barrier wall, with the remainder to be split evenly.
However, the agreement itself did not obligate Lemon Tree to actually build the wall. After one year of inaction by Lemon Tree, Huntington claimed entitlement to a refund. Ultimately, an appeal court reversed the trial court and granted Huntington’s request.
Years of time, legal expense and uncertainty resulted from haste at the end of the mediation. One additional sentence — or even a phrase within an existing sentence — would have eliminated any doubt. Instead, the few minutes saved early cost the participants tremendously more later.
I can’t swear that hunger caused the oversight. But the lesson is the same: Finish the task. Don’t let fatigue, scheduling constraints or other factors divert your focus on the task at hand.
While the principled agreement may be clearly understood at the mediation conference by the participants, the clarity may dim with the passing of time and the introduction of new people to the matter.
If it matters, use a mediator who provides snack foods. Just don’t be distracted from clearly memorializing the agreement because of such things as hunger pangs.
Blane McCarthy is a certified circuit mediator with Miles Mediation & Arbitration.