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Chicago International Dispute Resolution Association
REFRESHER GUIDE MEDIATORS AND MEDIATION
by Erwin I. Katz
CONCLUDING THE MEDIATION
In the end, whether the parties have chosen to settle their dispute or not, it is the mediator's responsibility to end the session. There are four ways in which a mediation session might end:
The parties do not reach any agreement.
The parties request a continuance of their case and an opportunity to return to mediation after a specific period of time. This is usually requested when one or both oft the parties want to resolve their dispute, but need additional time to gather Information that has bearing on their decisions and actions. A time to meet again is usually scheduled before the parties depart. Generally, the mediator who began the mediation will complete the mediation, if available.
The parties have a partial agreement on some issues and request a trial on those which they were unable to resolve. The parties may wish to include in their partial agreement a list of those issues which they would like a court or arbitrator to resolve. Any item included in the signed mediation agreement is not confidential.
The parties reach agreement on all the issues. An agreement is generally written at the end of the mediation. It is the mediator's moral responsibility to ensure that the terms of agreement are memorialized (written and signed).
No Agreement
While it is natural to hope that you can assist all parties in reaching a mutually agreeable resolution to their situation, it is the parties who decide whether an agreement will be reached. Some parties will decide not to settle, but that is not a reflection on you as mediator. In fact, if you find that 100% of your mediations result in an agreement (and you have done more than a few) you might be too heavy-handed with the parties.
If the mediation does not result in an agreement, there are a number of things that the mediator can do to end the session in an upbeat manner and increase the likelihood that the parties will reach agreement prior to a court proceeding (and/or be willing to utilize mediation in the future).
Review with the parties any issues that may have been resolved and explore the possibility of a partial agreement outlining what issues have been resolved and which issues the parties are requesting a later ruling.
Encourage communication after mediation (and before a trial date) by asking the parties if they wish to exchange business cards or telephone numbers. Often parties lack the ability to contact one another even if they wanted to reach out after the mediation.
Ask them if they are willing to contact the mediation office to request another session if they think at a later point it will be helpful.
Most of all, end on a positive note. Do not chastise them for not being able to resolve their problem. You might even accept some responsibility by saying, "I regret that I was not able to assist you in resolving your dispute today."
Agreement
In most mediations when the parties reach a full agreement, the mediator or a party will write the terms of the agreement, or a list of the items agreed to, by hand, at the end of the session to be signed or initialed before the parties leave the mediation. This function is extremely important. The agreement may be a legally binding and enforceable document or may serve as a guide for a legal document to be later drafted by lawyers. The parties need to understand it and be able to refer back to it. A judge may have to review and enforce it.
There are five basic elements of a written agreement:
Who - Who are the parties
What - What have the parties agreed to do
Where - the place or location that an exchange will take place
When - date of exchange; time limitations, be specific
How - what form will the exchange take
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Peter V. Baugher,
President
One South Wacker Drive, Suite 2800, Chicago, IL 60606 USA
312-409-1373 (Telephone), 312-701-9335 (Facsimile),