Using Written Word to Avoid Failure in Mediations

When I was a transactional attorney, I cannot recall how many times I heard a client say they had reached a deal with a counterpart only to later learn that the deal wasn’t as firm as they thought.  This most often arose not from bad faith but from the intent of one party being different from what was perceived cross-culturally by the other party. From that, I learned how to help clients make sure such misunderstandings didn’t occur and those tactics hold true for avoiding misunderstandings in mediation too.  One key tactic is to recap in writing any key points to a mediation as you proceed. 

Why?

“Why is that?” you might ask.  First, sometimes a party in another culture will use a gesture (such as nodding) or phrase (such as “yes”) that suggests the party is agreeing when in fact it just means the party is listening.  Second, many people have stronger skills in writing than they do in listening or speaking in a non-native language.  Third, many parties have to report to their higher-ups and it is useful to have something in writing to make sure they’re reporting the discussion accurately.  Fourth, it can’t hurt.  That is to say, I have never heard any party object to an effort by the other party to make sure they are understanding what is being proposed or conveyed. The time is well worth the effort.  Positions are clarified and the parties do not waste time pursuing inconsistent terms.

What?

“What should you recap?” you might ask. First, be sure you understand what the key issues are in a dispute from the perspective of the other party.  If, in an opening statement, they have shared some insight on those points, it may be useful to recap those points in writing.  If a party has made a proposal and you’re considering it, you should recap the proposal to make sure you understand it.  If, on the other hand, the other party has explained that it objects to your proposed settlement, you may recap the reasons the other party gave, so you can then address those objections one by one.  Finally, once an agreement is reached, recapping the key terms before anyone drafts a settlement agreement is useful. Doing so will often help trigger additional logistical questions about settlement terms that can be hashed out before anyone puts pen to paper to draft a settlement agreement itself.

 When?

“When would a recap be useful?” you might ask.  As the above discussion about written recaps suggests, written recaps can be useful at the early stages of a mediation or even before a mediation if pre-mediation briefs are shared with the mediator and the mediator is seeking to understand a particular client’s real objectives.  Recaps can be helpful to keep negotiations on track at key points during a mediation. They can be useful to make sure the parties have agreed on a settlement when they think they have a deal.  In sum, consider the utility of a recap at regular intervals if the parties are from different cultures and definitely to verify the terms of any settlement agreement before it is fully drafted.

How?

“How detailed does the recap need to be?” you might ask.  The less wordy a written recap is, the better, when the person reviewing the recap is functioning in a non-native language. Complexity, detail and length vary, however, depending on the settlement terms.  The key is to present ideas in plain language, with short, simple sentences, even if that makes the document longer.  Outlines or bullet points of terms are advised, in contrast to long narratives.  It is best to avoid more than one settlement term per sentence. 

Who?

Who can use this tool?  As a mediator, I have used periodic written recaps to make sure all the parties are tracking one another. I have also seen both parties or their respective legal counsel use written recaps to make sure there’s no disagreement OR to clarify where disagreement lies.  Anyone who is concerned that the parties might miss a settlement opportunity due to miscommunications, should use this tool to increase the likelihood of a successful mediation.

Give it a try; I think you’ll like it!