Writing the Negotiated Agreement

Once a negotiation or mediation has reached a conclusion it is necessary to write up the agreement.  The time to do that is at that moment.  The person(s) doing the writing needs to first summarize all of the key points and ensure an understanding of the points to be included in the agreement.  Typically in business to business, business to government and within business scenarios the key points have been pretty well flushed out and the person drafting the negotiated or mediated agreement is able to review notes and begin documenting the key points.

This takes some thought and effort.  The participants should remain in the vicinity so that the writer can ask questions regarding language and understanding.   While drafting the document, the questions of who, what, when, where, why and how need to be addressed.  For example if a payment is to be made it is important to spell this out.  For example, “A certified check, cashier’s check or money order in the amount of “X” will be delivered to (a specific address) by 4:30 pm on (date) made out to (name)”. 

There typically are ramifications if the negotiated or mediated agreement is not adhered to by the parties.   For example as a volunteer in Housing Court mediations the parties sign an agreement that states, “If the parties fail to abide by the terms of this agreement than the writ of recovery may issue.”  This means that for example if the tenant does not pay as indicated in the mediated agreement the landlord has the right to file with the clerk’s office to have the county sheriff evict the tenants within a specified time frame.   Similarly, in other negotiations or mediations there needs to be an understanding of the ramifications should the agreement break down.  Both parties should plan for the “divorce” if necessary at the time of the agreement writing.

Once the verbiage has been committed to paper the parties typically sign and date the agreement as a matter of good faith.  From this session, attorneys may later be engaged to include the appropriate legal language consistent with the parties interests to ensure the “i’s were dotted and the “t’s” were crossed. 

In this article from the Program on Negotiation from the Harvard Law School Guhan Subramanian suggests that writing up the document requires different skills than the negotiation itself.   This is true. It may be a plan of action or it may be a contract.  The needs of the parties should be appropriately addressed.  He points out that in complex deals when the negotiated agreement is handed off to attorneys this can lead to errors not necessarily foreseen by the negotiators or mediators initially.  

From my experience this may even entail a need to bring the parties back together when unforeseen matters are brought to the attention of the parties.   It is important to keep the parties talking and to ensure a good understanding between the parties as the written document is further refined.  In the end it is up to the participants to ensure mutual understanding in the final legal document as well.

Having been brought back into these types of situations several months later after a negotiation or mediation, it is possible there can be remorse from one of the parties, when the realization hits that interactions may cease going forward.  This may be referred to as separation anxiety as a result of a negotiated or mediated agreement.  Once I had two business people involved in a multimillion dollar agreement.  Both were worth tens of millions of dollars.  However, they asked me back to help them with a mediation of a nominal dollar amount to them (on the order of $1,200).  I told them I would give them one hour of mediation time to try and address this issue.  Of course it was not about the money.  It was about one party not having a connection with the other party going forward.   There had been some hard feelings and a misunderstanding on a personal level between the parties.  Once that was addressed a check was immediately forthcoming.  They also agreed to continue to interact with each other and set up a time to have coffee with one another in the near future.

We are 98% emotional and 2% rationale according to studies in neuroscience.  Keep this in mind relative to not only the negotiation and mediation, but also in terms of the final written document.   Be sure and include those emotional elements in the document as needed to ensure not only an acceptable agreement, but also to ensure a sense of fairness, balance, durability workability and completeness with the parties in the final agreement.