Civil Engineering Reference
In-Depth Information
time constraints, the lawyers would agree a joint letter and request
a jointly agreed bank to specify the relevant interest rate(s). All the
other issues were agreed and documented, subject to the resolution
of this one outstanding item.
Unfortunately, the three lawyers could not agree a joint letter,
wrote their own letters to three different banks and obtained three
different rates of interest. The matter took several months to resolve
and for the original agreement to be effective. By which time of
course, the claimant wanted even more interest!
The lesson for the mediator was not to let parties leave, even if
they did have a plane to catch, before all the issues were resolved.
7.5
Writing the settlement agreement
Most settlement agreements from a mediation are simple. The best are
brief, record the key points and terms and avoid complicated language
and clauses. The mediator, or a party's lawyer, may have a typical agree-
ment wording to use as a template. If no court proceedings have started
it need only be a straightforward Heads of Agreement. If action has
started the agreement will be in the form of a Consent Order or Tomlin
Order (the latter keeping the actual terms of the settlement confidential
as an attached schedule to the court order).
Understandably, mediators are reluctant to write the settlement agree-
ment. Oversee it - yes. Offer ideas and wording - definitely. But not write
it. After all, most commercial mediations have lawyers present and it is
they who have that responsibility. It can be a frustrating process, and
a lawyer-mediator may be tempted to act as a neutral scribe, but the
drafting should be by others. It is their problem and their deal. It is in-
evitable that writing up the deal takes some time. Every word becomes
important and each lawyer must ensure that his/her client's interests are
protected. But it is also an opportunity for the mediator to be creative.
As a non-lawyer mediator I am happily unqualified to write a settle-
ment agreement, so my attention is taken with filling the time, which
is commonly a couple of hours, to the parties' benefit. Once the deal
is done there is often a sense of relief, even achievement, and it is an
opportunity for the parties to meet again, free of the dispute. This is
easier if the decision makers themselves have struck the deal, for the
relationship will normally have already been restored. If the mediation
takes place in a lawyer's office there is invariably a wine store that can
be raided so that the parties can have a drink and chat together in the
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