Offers to settle at mediation are not enforceable until committed to a Settlement Agreement which is then signed by all parties. Reaching this stage is a critical step in finalising the dispute.
The mediation process has inevitable highs and lows during exploration and negotiation. The pace of the mediation can also shift rapidly from the intensity of negotiation to waiting for a breakthrough and finally the relief of an acceptable offer. It is therefore understandable after the adrenalin of the negotiation that there can be a drop in the energy levels when it comes to the drafting and review of the Settlement Agreement.
It is not uncommon for mediators to say the parties should allow at least 2 hours to negotiate the terms of a Settlement Agreement once the parties have agreed an outline proposal. Certainly, I have experienced cases settling in principle and a Settlement Agreement being signed up to 5 hours later. In one case however, it took the parties and their solicitors a further 12 hours to complete their Agreement. It can therefore take time. Once the contents of the Agreement have been approved by all, there are the practicalities of getting the Settlement Agreement signed. That may sound easy but can take time if there are many pages, everyone is working online, and the pages need to be uploaded onto DocuSign for all to check and apply an electronic signature. It therefore isn’t just the contents of the Agreement that can take time to draft but also the administrative tasks that support it. Being patient through this process can be a challenge when everyone is often tired from a day’s negotiating.
My advice at this stage is to get some food, a non-alcoholic drink (you can save any celebration for once the papers are signed) and move around the room or go for a quick walk to keep up your energy levels and focus. Recognise that you arrived without a way forward and now have the prospect of a solution which requires your clarity and focus for just a short while longer. You are then prepared for the next step of going through the detail of an Agreement and making sure that you have everything included as well as understanding the implications.
Without recognising that within a Settlement Agreement there is often fine tuning of the terms and potentially other issues to discuss and agree, this part of the mediation process can lead to frustration, exasperation, tiredness, and a feeling that it could all slip away. Take heart. It’s part of a process and it is nearly over without the need of a court hearing. Managing your expectations and energy at this stage is key and the mediator will help guide the process. It’s not over until it’s over but once is it you walk away from the mediation with the dispute behind you.