You have just spent an entire day in mediation traversing legal issues and opposing counsel as well as your client.
The good news is that the parties have reached a deal in principle.
The client is exhausted and has asked for the fifth time whether he or she may leave.
As tempting as it may be to take the victory lap, the parties need to sign a written settlement agreement first.
The final phase of mediation (i.e., the settlement agreement) is unquestionably the most significant piece of this puzzle.
It lays the framework and memorializes all of the efforts that the parties completed during mediation.
Without a doubt, the first, last and most critical component for finalizing a mediation agreement is having the client representative ready to review and sign the agreement.
If the mediation is in person, do not let the client leave the building. If the mediation is remote, keep the client on the remote platform.
As tempting as it may be to allow clients to leave mediation with their promise that they can be reached by phone to review and sign, do not do it.
There is nothing more awkward or frustrating for attorneys as when they are scrambling to reach a client for review and signature only to hit the voicemail abyss.
Clients must be aware that they are expected to be an active part of the mediation process until the agreement is fully executed.
The other aspect to consider for closing out a mediation agreement concerns the non-monetary terms.
Parties should examine any nonmonetary expectations well in advance of everyone sitting down to review the draft agreement.
For instance, is the agreement going to be confidential? While this may seem like a fundamental expectation, it is not guaranteed.
Pursuant to Section 44.405, Fla. Stat., mediation communications are confidential. However, this confidentiality does not automatically extend to the written agreement.
If a party has bargained for confidentiality, this needs to be discussed so as not to derail the mediation agreement at the last minute.
Another detail to consider before final discussions concerns a non-disparagement provision. A party may not be willing to include non-disparagement for the negotiated settlement amount and may expect additional funds for this additional consideration.
In the context of construction mediations, counsel should also address any warranty exclusions in the release.
There may not be a true understanding if one party has spent the day negotiating for a full and final unconditional release of all known and unknown claims while the other party has been operating under the presumption that existing legal warranties unrelated to the claims would be preserved.
Other issues to address in construction mediations are additional insured and contractual indemnification obligations.
It needs to be addressed whether AI and CI are part of the agreement before parties are conducting their review.
These could be material terms that undo the work put into the mediation.
In summary, merely getting to the negotiated monetary settlement figure does not guarantee a binding deal.
An effective settlement involves tackling core terms before the drafting phase.
Additionally, there must be a representative ready to review, discuss and execute the final agreement.
An “almost there” mediation can fail or stall if the participants are waiting for one of the decision-makers to re-engage in the process after leaving or logging off of the mediation prematurely.
Bryan Rendzio is a former judge the 7th Judicial Circuit. He is board certified in construction law by The Florida Bar, a fellow of the American College of Civil Trial Mediators and a full-time neutral at Miles Mediation & Arbitration.