Tips on Agreement Writing

So often, it might be necessary to write an agreement in haste because the parties want to sign off before they leave the mediation. Some of you have asked us for guidance and we think we have collected a number of topics you would like to see discussed. To ensure that the document is a valid record of the parties’ agreement, we offer the following guidance with respect to agreement writing.

The agreement form: Please use the agreement form that was supplied in the packet of materials sent to you. Some of you have been thoughtful enough to discuss the components of the agreement with us. We appreciate any advice you may have to clarify the wording. The agreement form has been approved by the Department of Justice and contains necessary wording. If you object to using the agreement form, please let us know before you accept a case so that we can assign it to another mediator.

Specificity: Include all the necessary details in the agreement such as: who; when; what; where; how much; and so forth. This level of specificity is extremely helpful to parties in the mediation to pin down their mutual obligations and provide them with a time frame in which the agreement will be implemented. Avoid statements that refer to some uncertain future activity that may take place with a nonspecific person or organization.

Mutual obligations: Both parties ought to have obligations in resolving the complaint. In a few evaluations we have received, parties may express dissatisfaction because they think the agreement is weighted in favor of the other person. One way to ensure that this impression doesn’t occur is to give each person an idea that what he or she is doing is counterbalanced by an act on the part of the other person.

Clarity and simplicity: The more clearly and simply stated each component of the agreement is, the more easily the parties can understand their obligations. The challenge is to be able to clearly and simply state a component of the agreement while capturing what the parties want to have happen. This takes practice. If you think that you are being rushed in writing the agreement, insist that you need time to write it even if it means meeting with the parties again, or mailing it to them for their approval.

Neutral wording: Be careful to state agreements in the most neutral manner possible. Words can trigger defensive responses by the parties in mediation as we all know. Sometimes, nonneutral wording also leads to conclusions that the agreement is not fair.

A written agreement is a reminder: A not uncommon event in mediation is for the parties to convince the mediator that they need not write down the specifics of some aspect of the agreement. We often hear: “Oh, we don’t really need to write that down we’ll remember it.” This should be a signal that the detail should be captured in words. It might be that the lack of detail is the very thing that will interfere in the implementation of the agreement.

Typed agreements: Again, in some cases, particularly those in which everyone is traveling to the mediation site, the tendency is to write the agreement so that parties can sign it before they leave. If at all possible, convince everyone that you need the time to type it and you will mail it to them for their signatures. The extra time also gives you a moment to think about whether you have attended to all the issues raised in the above. If you have a choice of spending time in mediation, it probably is better spent refining the language of the agreement rather than writing the final form. You be the judge of whether, case-by-case, mailing the typed agreement to the parties makes sense.

Closing cases: Remember, agreements must be structured with implementation in mind. A case in this program is not closed by having an agreement signed; a case is closed when the complainant and respondent confirm implementation of the agreement.

Reference to others: When you refer to other parties in an agreement that are not present in the mediation and base some future action on contacts with them, please be certain that those intentions can be carried out. At least encourage the parties to recognize that this is a weakness in their agreement and ask them how they can improve the possibility of implementation.

Contingencies: Encourage the parties to consider contingencies if at any point in the agreement, one or both of them are unable to perform.