Mediation Mistakes- Part III:
Whether you are a party to a lawsuit or the attorney representing one of the parties, a very common mistake is failing to draft a settlement agreement in advance of the mediation. The case may or may not settle at the mediation, but if it does, no one wants to sit around for several hours waiting for a settlement agreement to be drafted from scratch.
My practice, whether I am the mediator or acting as an attorney for one of the parties, has always been to prepare, in advance, an agreement which embodies, at the very least, the basic components of a settlement agreement such as: the case style, signature lines for each of the parties, and certain provisions which are commonplace in most settlement agreements (i.e. confidentiality, mutual releases, signing in multiple parts, etc.)
You may not know in advance exactly what the terms of settlement will be but, at a minimum, you will have the basic structure of the Settlement Agreement in place so that the remainder of the agreement can be drafted more quickly.
If you are a party to a suit that is going to mediation, it is recommended that you ask your attorney draft a proposed settlement agreement in advance, or have your attorney ask the mediator if he or she has a draft agreement. You will save a lot of time, aggravation, and money if a draft agreement has been prepared in advance of the mediation.
(Rod B. Neuman is a Florida Supreme Court Certified Circuit Court Mediator and is certified in the United States District Court for the Middle District of Florida, and offers these reflections based upon his experience in conducting mediations.)