By Stephanie Singer
Even though mediated settlements often have the force of law behind them, no party wants to have to go to court or return to the negotiating table to enforce an agreement.There are a number of steps a mediator can take to encourage parties to honor their commitments, both during the mediation session and in the structure of the resulting agreement.
Emphasize the Parties’ Relationship
Parties are more likely to comply with an agreement if they value their relationship with each other.Therefore, during the mediation, you should focus on their relationship, placing it on the table directly as one of the issues in the mediation.Ask the parties—either in joint session or, if it would be more comfortable, in private caucus—to explain how they each value their relationship with the other party, and how they would like to see the relationship change or progress as a result of the mediation.Doing so will prime the parties to consider the relationship an integral part of the final solution.If the mediation serves to improve the relationship between the parties, they may be more likely to comply with the agreement as a way to avoid damaging the relationship and losing the progress that was made during the mediation.
Take all steps to ensure that the process is fair, as parties are more likely to comply with an agreement that they feel was the result of a fair process.A keystone of fairness is mediator impartiality, one of the core principles of mediation.Do not take sides and avoid even the appearance of partiality.Mediators should be free from favoritism, bias, or prejudice.A fair process is one in which both parties have the opportunity to fully tell their story and in which all parties are accorded the same level of respect.
Encourage Active Participation
Because parties are more likely to comply with an agreement that they took part in developing, encourage all parties to participate in the idea-generation process.During the mediation session, allow the parties to brainstorm ideas for a final settlement, pushing them to come up with as many possible solutions as they can.None of the ideas should be evaluated; brainstorming time is for idea generation only.Reassure the parties that suggesting an option does not mean that the party supports it or would necessarily commit to it.The goal is merely to get as many ideas—feasible and not—out on the table as possible.The longer the list of ideas, the more options the parties have from which to choose, and the more likely it is that some combination of them will be acceptable to everyone at the table.
Let the Parties Lead
When the parties attempt to set the outlines of a final agreement, refrain from recommending any particular solution and don’t attempt to talk one party into a solution that the other party is willing to approve.Parties are more likely to comply with agreements if they did not feel coerced into accepting them, so be particularly careful to avoid any perception of coercion or pressure.A facilitative, rather than evaluative, style of mediation would be best suited for situations in which agreements are not enforceable.Facilitative mediators focus on helping parties come to an agreement on their own, whereas evaluative mediators may come up with or recommend particular solutions.In order to keep the degree of coerciveness down, be as facilitative as possible, simply managing the process by which parties develop and refine their own solutions.
Draft It Yourself – In Their Words
The agreement should be finalized in written, rather than oral, form, even if the parties are illiterate.A written document serves as proof that the parties engaged in mediation and came to a settlement.It also helps parties work out details that might not be contained in an oral agreement.If permitted by law, you should draft the final agreement, so that neither party has a chance to influence it at the last minute with biased wording, and so that neither party even suspects that their counterpart may do so.During the process of drafting, include both parties by asking for their advice and input.Be sure to attribute various provisions or phrases to each party, so that the parties feel that their input made it into the final draft.It should be drafted as much as possible in the words of the parties who have generated the solutions.This will maximize their ownership of the agreement and thereby maximize the chances for compliance.
Sign and Date
All parties should sign the agreement.Their signature serves as a promise that they will fulfill the terms they have agreed to.Although not legally binding, a signature can have symbolic significance.Formalities such as signatures serve a cautionary function, requiring parties to reflect on the agreement into which they are about to enter and deliberate on its wisdom.You may even want to consider asking both parties to take an oath to uphold the terms of the agreement.Although there is no legal significance to this, it imparts to the parties the seriousness of the agreement and may cause them to think twice before violating it.It will serve to “awaken the [party’s] conscience and impress the [party’s] mind with the duty to [follow through with their promises.]”The final agreement should also include a review date, a mutually agreeable date by which the terms of the agreement must be fulfilled.The parties can agree to return to mediation or take other steps if the agreement has not been fulfilled by the review date.This gives parties a tangible end date by which to comply with the agreement and gives an aggrieved party some recourse for lack of compliance.
Include Reciprocal Promises
The mediation agreement should include reciprocal promises.This serves two purposes.First, parties are more likely to comply with an agreement that they feel is fair, and an agreement may seem fairer if both parties are promising to do something.Second, if each party is counting on the other to fulfill a promise, this provides an additional layer of encouragement.If one party does not live up to her promises, the other party will not live up to his, thereby causing the first party to miss out on something that would have benefitted her.In a sense, each party can hold his part of the agreement hostage until he feels satisfied that the other party will live up to her part.This is a type of self-enforcement mechanism.
Specify the Consequences of Noncompliance
The final agreement can also include contingency provisions setting out what will occur if a party does not live up to his end of the bargain.Each party can think of consequences that he would prefer to avoid, and then give the other party permission to effect those consequences if the party fails to comply with the agreement.This is a way that parties can signal to each other that they are serious about their promises.When each party decides whether to comply with the agreement or not, it will consider what the other party is likely to do as a result.If the first party can make a credible commitment, the second party will take this into account when deciding whether to comply.Interdependent promises with negative consequences for lack of compliance give the parties a way to make credible commitments to each other.
Mediating Permanent Solutions
These are just some of the techniques that are likely to increase the chances that parties to a mediated settlement will stay true to their terms.Inspiring their fidelity to these agreements can go a long way toward achieving lasting success in resolving disputes through mediation.
Stephanie Singer is a 3L at Harvard Law School. She is the co-editor-in-chief of Harvard Negotiation Law Review.
1 Edith Brown Weiss, Understanding Compliance with International Environmental Agreements: The Baker’s Dozen Myths, 32 U. Rich. L. Rev. 1555, 1570 (1999).
2 Dean G. Pruitt, Robert S. Peirce, Neil B. McGillicuddy, Gary L. Welton, & Lynn M. Castrianno, Long-Term Success in Mediation, 17 Law & Hum. Behav. 313, 327 (1993).
3 See, e.g., Model Standards of Conduct for Mediators Standard II (2005).
6 Harvard Mediation Program, Drafting Small Claims Settlements, Harvard Mediation Program Basic Training Manual (Spring 2009) (on file with author).
8 Insight Collaborative and the United Nations Development Programme, Maison de la Justice Mediator Training Manual 21 (2009) (on file with author).
9 Marc Galanter & Mia Cahill, Symposium on Civil Justice Reform: Most Cases Settle: Judicial Promotion and Regulation of Settlements, 46 Stan. L. Rev. 1339, 1382 (1994).
10 For a discussion of the different styles of mediation, see Leonard L. Riskin, Understanding Mediators’ Orientations, Strategies and Techniques: A Grid for the Perplexed, 1 Harv. Negot. L. Rev. .7 (1996).
12 Insight Collaborative, supra note 8, at 40.
13 John D. Calamari & Joseph M. Perillo, Contracts 294 (3d ed. 1987).
14 Some jurisdictions regulate the ability of mediators to draft settlements.For non-lawyer mediators, drafting may constitute the unauthorized practice of law.This is the case in New York, for example.Suzanne L. Brunstring, Taking the Collaborative Approach, New York Family Law Strategies,*15 (2009).For mediators who are also lawyers, drafting may be in violation of the restriction not to represent opposing parties on the same matter.O. Russel Murray & Stephen A. Bailey, Ethics in Negotiation and Mediation for the Florida Attorney, Florida Bar Journal *18 (May 2008).
15 Harvard Mediation Program, supra note 6.
16 3-10 Corbin on Contracts § 10.2
17 Lon Fuller, Consideration and Form, 41 Colum. L. Rev. 799 (1941).
18 This same idea is behind the U.S. Federal Rules of Evidence’s requirement that parties swear or affirm to tell the truth before being admitted as witnesses.Fed. R. Evid. 603.
20 Insight Collaborative, supra note 8, at 40.
21 Harvard Mediation Program, supra note 6.
22 Principles of decision analysis and the strategic value of credible commitments developed by business strategy scholars come into play here.See, e.g., Luis M. B. Cabral, Introduction to Industrial Organization 48 (2000).