Mediation in civil litigation is designed to solve problems and assist the parties in reaching a resolution of their legal dispute.  Mediation is often invoked to resolve the parties’ disputes outside of traditional court processes.  Unlike litigation, where abundant statute and case law provide process structure and guidance, mediations, often characterizes as a pause on the acrimonious practice normalized in litigation, are largely left up to the participants.[1]  And, in the event the mediation results in a settlement, the parties will be tasked with drafting and executing a settlement agreement.  Some mediators attempt to draft the settlement agreement for the parties while others prefer to let the parties draft the agreement themselves.  This split in conduct begets the question, should I let the mediator draft my mediation agreement?

While there is no one correct answer, our preference is to draft the agreement and allow the other side to propose modifications to the agreement.  Not only is this consistent with mediation’s stated goal of party self-determination, an element at the very core of the mediation process, it also best captures the parties’ intent.  While a mediator drafted agreement may seem to be the most neutral and fair-minded approach to completing a settlement agreement, the mediator is often years removed from litigation and will not take the time necessary to draft a fully engrossed settlement agreement containing every necessary provision required to draft an ironclad settlement agreement.  For these reasons, our view is that the parties should take the time and effort necessary to draft the settlement agreement themselves and rely upon the mediator only as a resource in the event a dispute arises or for recall.

In the event the parties are pressed for time, the mediator may propose a partial agreement, term sheet, or memorandum of understanding.  That is a short form – consisting of usually a single page – settlement agreement setting forth the key terms of the settlement and requiring the parties to complete and execute a full settlement agreement within an allotted amount of time.  In our view, we take no issue with the mediator drafting this agreement, provided it allows the parties to draft the complete settlement agreement themselves.

It is important to note that private ADR, and private mediation, are largely recognized as separate from the Court.  That is because mediation is not viewed by all as the practice of law.  In fact, the American Bar Association has passed a resolution that unequivocally holds that mediation is not the practice of law.  If you litigate your case you will most likely, but not always, mediate with a private mediator who is affiliated with a private mediation company who has no formal or business relationship with the trial court handling your case.  Many individuals work as mediators on a full-time basis.  Therefore, mediation is widely viewed as its own independent profession, and not part of or corollary to the practice of law or the court system.  That is to say, when you mediate privately, you enter another world distinct from the trial court and your legal case.