Do We Have an Agreement? Don’t Forget the Terms! 

Tue, Dec 31st, 2024 | by Miles Mediation and Arbitration | Article | Social Share

By Eric J. Frisch 

A common definition of mediation is a process with an impartial neutral who assists the parties in resolving a dispute. In most civil litigation mediations, the goal is a final settlement agreement. Mediators conclude a session where an agreement has been reached with a written memorandum. Commonly, the parties then leave the session with the intent to finalize the settlement with a more substantial written agreement, using that memorandum as a guide.

That doesn’t always happen. Litigators know there is nothing more disheartening than reaching an agreement at mediation — which may take hours or even days — only to have the resolution fall apart because of a disagreement over the final terms. Similarly, litigators know that “boilerplate,” or “standard,” settlement agreement provisions may fit in one case but not another.

Fortunately, some planning and forethought can help you avoid this possibility. Here are five strategies to help you leave the mediation session confident that all parties involved have reached a true, final resolution.

1. Start Early

When I am negotiating a settlement, with or without mediation, my first move may not even be a settlement offer (I am most often on the defense). Rather, I typically start with a set of terms that I have vetted with my client and the insurance carrier. I send those terms to opposing counsel in advance of the mediation and state that each offer is based on these terms. If anyone – plaintiff or co-defendants – has a different set of requirements for a final agreement, we discuss those requirements early and often. Remember, an agreement is reached when there is a “meeting of the minds,” so start the process early.

2. Question “Boilerplate” or “Standard” Terms

The most basic definition of “boilerplate” language is “ready-made or all-purpose language that will fit in a variety of documents.” According to “Black’s Law Dictionary,” the term refers to copy, or artwork, etched on metal plates and distributed to newspapers and printers. Today, boilerplate usually refers to the “fine print” in a contract or disclosure that people (even attorneys) pay little attention to.
Not all boilerplate language is suspect — “standard” or one-size-fits-all agreements can work in certain cases and that is a decision that the mediating parties should consider as part of the negotiations.

In some cases, however, boilerplate language may be insufficient. For example, in personal injury cases, a “standard” general release may fail to identify specific defendants, employees, or agents who need to be included in it. Or, in wrongful death cases, provision may be needed for “potential but unknown claimants” or the administration of an estate.

Likewise, insurance carriers may have different requirements for lien resolution, Medicare Secondary Payor Act compliance, or other regulatory compliance. Identify these needs well before the mediation and modify your boilerplate provisions (or draft new potential provisions) that language ahead of time to avoid missing including a relevant party or possibility the day of mediation.

3. Address Special Needs

Articulate and negotiate any special needs that your client (or the insurance carrier) may have for the final settlement agreement. Some examples include needing the check within a certain time frame; being unable to deliver the check within a certain time frame; structured settlements (and how they should be structured); choice of law/forum provisions; and a non-disparagement provision.

While these may feel like “boilerplate” or “standard provisions” to you, another participant may not agree to them. You can avoid surprises and pave the way for a resolution by spelling out any special needs for the neutral and the opposing party during the session. And if there is disagreement, the neutral can help resolve the differences as part of the overall negotiations.

4. Put it in Writing

The goal of mediation is a negotiated agreement, memorialized in a written memorandum, to end the dispute. When the parties have agreed to the terms of the final agreement, write them into the settlement memorandum in clear and unambiguous language. If the parties negotiate further changes or additions, make sure they are included in the memorandum.

5. Review the Memorandum

Now that the terms of the agreement are reflected in the memorandum, your job is done, correct? Not quite. Review the terms of the agreement with your client. Make sure that he or she understands what the terms mean, and what their significance is.

Don’t rush this step. You may be eager to wrap up the mediation, especially if it’s gone on for hours, and you’re ready to call it a day. But overlooking this final step or prodding your client to sign the memorandum before your client fully comprehends (and agrees to) the specific terms of the settlement can backfire on you.

These five strategies are relatively simple to implement at your next mediation. Yet, when followed, they can help ensure that the case you thought you settled at mediation remains settled — which, after all, is the underlying goal of mediation.

*Originally published in the Daily Report and reprinted with permission.

About Eric Frisch

Eric Frisch is an AV Preeminent®-rated lawyer and registered mediator and arbitrator in Georgia. Eric graduated from the University of Florida with a bachelor’s degree in political science in 1993. He graduated from Emory University School of Law in 1996.

Since graduating in 1996, Eric has built his practice around the trial of complex medical malpractice, personal injury, professional liability, and commercial cases. He has tried more than 35 cases in the state and federal courts of Georgia as first or second chair.