To Draft Or Not To Draft, That Is The Question

Mediation is an opportunity for people to reach agreements. Those agreements might resolve a dispute. Or those agreements might finalize a deal. Either way, the agreements provide clarity to the parties as to their pathway forward.

Assuming that they will remember the details.

How many times have you been frustrated when you’ve asked someone to fetch you three items from the grocery store and they come back from the store with a bag full of things, none of which are the items you’ve asked for?

How many times have you forgotten those items yourself?

You probably already know that the best way to remember what to bring back from the grocery store is to write a list of what you are wanting and then take that list with you to the store. Though there’s still no guarantee that you will follow the list, or that you won’t lose the list on the way to the store, just having a list increases the likelihood that you will bring back the desired items.

WHY PUT AGREEMENTS IN WRITING?

The written word provides a reference point so that we do not have to rely on our own memories. Not only does the “forgetting curve” mean people tend to forget 50% of information within an hour¹, psychological and neuroscience research has affirmed that memory is a reconstructive process susceptible to distortion².

If we accept that it is important for our clients to remember the details of the agreements they reach in mediation, and if we further accept that having a written record of those agreements will mitigate the risk of forgetting those details, the value of reducing a mediated agreement to writing is clearly not a controversial concept. However, who should be the writer can be.

ARE THERE LIMITATIONS TO WHAT A MEDIATOR CAN DRAFT?

In some jurisdictions “legal” documents can only be prepared by lawyers. In fact, in those jurisdictions a non-lawyer who drafts a “legal” document can be charged with having committed the “unauthorized practice of law.”³

This gives rise to the debate as to whether a written agreement is a “legal” document or not, the definition seeming to hinge on whether a court would recognize and enforce the validity of the document.⁴ There is much ado made of the significance of labelling the document as simply a summary; or cautiously a memorandum of understanding; or dangerously a contract, separation agreement, or something of the like, something that carries with it an aura of importance.

Yet a rose by any other name is a rose.⁵ An agreement is an agreement is an agreement, regardless of the label at the top of the document. And contract law provides for even verbal agreements to be binding⁶ (subject of course to the other requirements also being in place, such as there having been a meeting of the minds, agreement as to the essential terms, and exchange of value, capacity to enter into the agreement and the absence of undue influence).

So if it’s possible for a court to recognize and enforce agreements as valid even if they are not written agreements, why even bother with the issue and write anything at all?

WHAT IS THE VALUE OF A WRITTEN AGREEMENT?

Let’s go back to the grocery store example for a moment. Regardless of what we might call our grocery list, the list functions as a reminder. It provides us with clarity as to the purpose of the trip to the grocery store. Peace of mind that there will be no misunderstanding. And it’s a record of what was requested in the event the requested items are forgotten.

A written agreement operates in a similar fashion to the grocery list: it provides comfort to the parties that there’s been a recording of intentions that can be relied upon for future reference.

Some clients may feel comfortable relying simply on their memory of a verbal agreement, and there will be others who want something in writing but are content with a summary set out in bullet form. Still others might want a formal agreement that has been reviewed or written by a lawyer.

And there lies the tension inherent in the question to draft or not to draft. The balancing of what our clients want, what they need, and what is best practice in the provision of mediation services.

WELL THEN, WHAT SHOULD A MEDIATOR DO?

1. Identify and understand your responsibilities, obligations, and limitations as a mediator. Are you in a jurisdiction that prohibits non-lawyers from drafting “legal” documents? If so, what qualifies as a “legal” document in your jurisdiction and are there exemptions for mediators?⁷

2. Decide what you are willing to do. Regardless of whether you are in a jurisdiction that permits mediators to draft “legal” documents or not, you may still prefer to limit your services and never draft documents at all to minimize your risks. Or you may decide that there are some but not all documents you are able and willing to draft. And there will be some of you who determine that it is not only allowable for you to draft documents in your capacity as a mediator, but it is also a service you wish to provide for those who want it.

3. Communicate the scope of your services to your clients. Help potential clients identify their needs and expectations. They can then exercise their right to self-determination in deciding whether you are the right mediator for them before the process even begins.

4. Be crystal clear in all documents as to the intention of the document – is this a document meant to merely record ongoing discussions, progress, homework items, and without prejudice agreements? Or are the parties expecting to rely upon the document as evidence of the details, terms, and conditions of an agreement, to enforce the consequences for failure to follow through on that agreement?

5. Always recommend independent legal advice. If your clients choose to proceed without independent legal advice be sure to record that decision in written correspondence to the clients (whether embedded in a summary or as a separate email, text, or letter) and that you encouraged and provided them with the opportunity to seek that advice.

6. Continue your professional education and development. Take courses; attend webinars, workshops, and conferences; read books; participate in mediation practice groups; seek mentorship. As with many questions in mediation, the answer to draft or not to draft really does depend, and the wise mediator dost knows enough to know that there is always more to learn on the subject!⁸