It’s Not Over Until It’s Over – A Mediator and Post Mediation

By June 13, 2017June 24th, 2017Articles

The mediation is a success! It is so successful that the parties forget to thank the mediator but do not forget to send the checks. Riding on the fumes of euphoria, the parties are happy with what each understands to be the settlement.

The implementation: Is there a signed agreement as to the terms of the great settlement? Was it late when the meeting ended and everyone wanted to go home and celebrate? Was the plan to rely upon the notes taken at the meeting? Whose notes are definitive?

Don’t look to the mediator. It was never his responsibility to be the scribe. The writing and signing off on any agreement of settlement is the responsibility of the parties. The meeting should not be over until the last version of the agreement has been signed.

Common Error #1

The mediator can always be contacted and asked for his recollection or for a copy of his notes. This is incorrect.

Correct: Mediators go off the clock and out of touch when the matter is declared as having been settled by the parties. The mediator’s services have not been engaged to arbitrate which party has the correct recollection of the terms of the settlement or the interpretation of the agreement.

Common Error #2

The mediator can always be subpoenaed to testify and to bring the noted kept at the meetings. This is incorrect.

Correct: Once the mediation is over, the mediator, in effect, disappears leaving the parties with whatever they agreed upon.

The mediator is not a creature of the law. The mediator is a creature of the parties’ contract requiring mediation. Mediation is also a creation of a contract with a mediator set forth in the Agreement to Mediate. The mediator is bound by the four corners of the agreement and has the right to rely upon its terms and conditions.

Specifically, “The mediator shall not be subpoenaed or otherwise called by any party to testify or to produce records, notes, reports or other documents reviewed, received or prepared by the mediator with respect to the subject matter of the mediation or any matter that was discussed or transpired during the course of or in connection with the mediation, unless related to alleged misconduct of the mediator as provided by the court rules or law.

The very reason mediation has a chance of working is the parties’ confidence that the mediator is a catalyst to be used to facilitate arriving at an agreement. What the mediator thinks or remembers is immaterial because it always has been and remains the parties’ mediation and what they agreed upon. The mediator does not give legal advice or have the authority to tell the parties what they agreed upon.

Parties are always urged to work with their own counsel and review agreements to be sure that when the mediation is over, it is truly over.

If you would like to know how mediation can help resolve commercial and business disputes, please contact McFarlane Legal.