This is the 12th and final article in this series on mediation advocacy. The 11th article, Mediation Advocacy: Preparing to Avoid an Impasse, published December 21, 2012, provided tips on how to avoid and address an impasse. The article continued a scenario in which the parties, Widgetronics and DesignMetrics, entered into a contract containing a dispute resolution clause and became embroiled in a dispute over Widgetronics alleged wrongful termination of the contract. Counsel for Widgetronics and DesignMetrics have recently completed a mediation session. Regardless of how the mediation session ended (e.g., signed terms sheet, plan for further negotiations, need for information), counsel need to take appropriate action to follow through, to continue the momentum started in the mediation and preserve the benefit gained during the mediation. This article discusses the types of actions counsel should consider pursuing following a mediation session.
Following Through When Parties Reach Agreement
When the parties hard work in a mediation session results in an executed terms sheet or a verbal agreement, they must then follow through on whatever paperwork and actions are required to formalize their agreement, which typically includes preparing and executing formal settlement documents. Settlement-related documents will vary, depending upon the nature of the dispute and the agreed-upon settlement terms. In some cases, the formal documents may simply include a settlement agreement and a motion to dismiss (if a case is pending). In other cases, they might also include a business agreement, a side letter, a press release, a letter of recommendation, a title transfer, or even a certificate of destruction. Once counsel determine what settlement documents to prepare, they should decide who will prepare them, and set clear and practical deadlines for the drafts and final documents. Setting and keeping a schedule for preparing and finalizing the necessary documents is an important post-mediation task. Often the momentum of the mediation is enough, but sometimes counsel can become distracted with other responsibilities or they may encounter clients having second thoughts.
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