A recent mediation involved restoring a vehicle. The plaintiff alleged she was overcharged, which the defendants disputed. To resolve the litigation, the plaintiff wanted a substantial portion of her money refunded.

After a few hours of negotiating different installment payment plans, and frankly, when I thought we were at the end, I  suggested an alternative monthly payment amount. Surprisingly, both parties agreed, and magically the matter settled.

The parties were ready to end the mediation. Counsel figured they would simply work out the details of the installment payments between them over the coming days. However, my alarm bells went off, as my experience taught me that there is no settlement until every detail is worked out and agreed upon. So, rather than agreeing to end the mediation, I suggested that we take the opportunity with everyone present to work out the details.

In my online  Employment Dispute Mediation class, we discuss the fact that a settlement requires more than just agreeing to an amount.  There are details to be worked out. These include:

 

  • Who is doing what?
  • When are they doing it?
  • Where are they doing it?
  • How are they going to do it?
  • What happens if they do it?
  • What happens if they don’t do it?
  • Are there any conditions or contingencies about doing it?
  • If there are conditions or contingencies, what happens if they are met?
  • If there are conditions or contingencies, what happens if not met?

 So, following this outline, we set a day of the month for the due date of each payment, the grace period for late payments, the notice period if a payment was not made, how such notice is to be given and to whom such notice was to be given, the further period of time to make the payment after such notice, the court procedures to be invoked if no payment is made, the amount then due in a judgement, whether attorneys’ fees were allowed and how much and so on.

To ensure everyone understood the terms, I asked counsel to send confirming emails outlining them, with opposing counsel acknowledging the correctness of the emails.

This additional process of going through the details took no more than an extra 10-15 minutes, but, without doubt, saved a lot of time and misunderstanding in the long run. As it turned out, some of the details agreed upon were unusual. If left to counsel to negotiate after the mediation, they would have probably delayed completing the settlement, if not thwarted it altogether.

So, when parties agree on an amount to be paid in settlement, be wary: this is only the beginning of the settlement discussion. The details have still to be worked out.

Settlement: it is all in the details!

…Just something to think about.

 

 

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