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Victoria Pynchon

As the co-founder of She Negotiates Consulting and Training, I offer my services as a keynote speaker, trainer and consultant....

She Mediates

ADR Services, Inc.

She Negotiates

She Negotiates

The 33 cent wage and income gap is unacceptable and unnecessary. So is the cliché glass ceiling. Bottom line, our...

Devil in the Details: the Deal, the Whole Deal and Nothing But the Deal

It's getting very late in hour eleven of the mediation and everyone is tired and cranky.  We've agreed upon:

  • the total sum of the settlement;
  • the period of time over which the settlement will be paid;
  • the Stipulated Judgment in the event of default; and,
  • the amount of the Stipulated Judgment (far more than the agreed upon settlement sum).

We could put these terms in a skeletal settlement agreement right now; include the "magic language" from Evidence Code section 1123 that will permit enforcement of the mediated agreement; and, let everyone get on the road, onto a plane and into bed.

Because these parties couldn't agree on what year it is, however, no one balks at my suggestion that we write up the entire deal -- settlement agreement with mutual general releases; the Stipulation for the Entry of Judgment; and, the proposed Stipulated Judgment itself.

The first problem is everyone's failure to bring a form Settlement Agreement and Mutual Release, let alone one that included enforceable terms for the entry of a Stipulated Judgment in event of default.   

ADVICE???  Carry these documents on a "flash" or "jump" drive whenever you're going to a settlement conference or mediation.  Heck, carry them with you to the first day of trial where you might be startled to learn that your adversary is prepared to settle the case right now!

Fortunately, I had access to my own files which contained detailed forms for everything we needed, forms I offered to counsel as guides. I did so only with the express understanding that I did not recommend my own forms as adequate, complete or enforceable.  

I'm just the mediator, not the legal representative of the deal in loco parentis.

It's a good thing we made the effort to fully document the deal because it threatened to fall apart over all of the following terms:

  • the dismissal of ancillary proceedings
  • forbearance from inducing future actions by non-parties
  • liquidated damage clauses for the breach of certain critical deal points
  • indemnification for future actions if induced by certain of the parties

Each of these items required separate negotiation and compromise and as to each I helped the parties calculate the degree of possible misbehavior by their adversaries and the protections that might "fit" the probable harm.  I do not believe the parties would have been able to resolve these terms (as well as others too confidential to mention) without third party assistance.  One was so difficult to predict both the series of possible events and potential remedies that we provided for arbitration of that term alone in the event of alleged default.

When we all finally left the building at one in the morning, we had fully completed paperwork, signed by all parties in hand. 

And yes, I was the only one present who could type.


Comments (4)

Read through and enter the discussion by using the form at the end
Scott Perry - January 24, 2009 4:09 PM

What kind of risks do you see in carrying gig sticks with information around? I do it, too, but always worry about dropping it or leaving it somewhere. Your thoughts?

Chris Annunziata - January 25, 2009 7:46 PM

I have taken to carrying around a paper form, with lots of wonderfully basic stock language and 2 pages of lines for the parties to write in the agreement. But the flash drive idea is fantastic. You can have several different versions of settlement agreements.

Always full of great ideas, Vickie.

Juliana Hoyt - January 29, 2009 12:25 PM

On the gig sticks what I do is have the forms only with no identifying information (no names of the parties, addresses, etc). If the need arises to upload those forms and fill them in then the data transfers to a computer's hard drive to be finalized, emailed to parties and attorneys and printed, if need be. That way there is no meta data from one client imported into a document sent to another and no worries about dropping the stick. I also like the idea of carrying around language on paper but it can take awhile to transfer the standard language into a final document and that can get frustrating for the draftsman and those who wait for the document to be completed.

Wonderful post, as usual Vickie. Do you put your disclaimer regarding use of the forms you supply in writing? In your Agreement to Mediate or as a footer on the documents themselves? Or do you just tell them orally?

Vickie - January 29, 2009 2:51 PM

Good thoughts on the gig sticks, Juliana, particularly on the meta-data; something I tend to forget about.

If I were more risk averse, I'd have the attorneys sign a retainer agreement that says the use of any form language provided to them by the mediator or ADR firm is not legal advice, etc., etc.

As it is, I think an attorney would be ashamed to say he/she relied on the mediator to advise client. That is probably below the standard of care and hence negligence on the part of the attorney. So, yes, I just orally tell them, I make no representations about the enforceability or completeness of this form, etc.

Thanks for dropping by and taking the time to add your own good advice.

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