The Mediation Process – Case Settled
Assuming the case settles at the mediation session, the parties need to agree on all of the terms, monetary and non-monetary. Release terms, the need for confidentiality, timing of payment, and the need for Court Approval are just a few of the more common items that need to be resolved. In the usual personal injury case, these are not generally the cause of much controversy, but occasionally they get in the way. Before the parties leave the mediation there should be a discussion of all relevant terms for the ending of the matter both inter se and with the Court.
In the simple case, it is my practice to author a wrap up letter containing the details of the agreement, as well as a description of who has agreed to do what in order to perfect the settlement. This letter serves as a term sheet for the agreement itself.
In more complicated cases, especially in commercial matters where much of the performance by parties is executory, and will take place over time, or where people are required to take some sort of action, a more formal end to the mediation session is in order. A term sheet or even a draft of a settlement agreement can be dictated and transcribed, subject to more formal agreements to follow. Even pages of notes can be initialed to form a term sheet. One of the most bitter and protracted cases I have mediated arose from a prior mediation between the parties where the settlement was not enforced because of the inability to prove there was a meeting of the minds. Counsel should give considerable thought to what documentation of settlement needs to be in place before leaving the mediation. I am not one who believes that lengthy documentation is required in all cases, but counsel should err on the side of caution.