I suspect, if you were to ask most mediators what the purpose of mediation is, they would answer, “To get an agreement.” While I wouldn’t entirely disagree with this, I’d argue that the answer is incomplete. What we really want is an agreement that works.

If parties don’t follow the agreement or issues continue to fester, it hasn’t been a successful mediation, regardless what papers have been signed.

To be sure, this is much less likely to be a problem when the primary question in the mediation has been who pays how much to whom and under what circumstances. It’s relatively simple to determine whether or not A has paid X to B.

Not all mediations are this clear-cut, however. This is especially true if the parties may have an on-going relationship once the mediation is over. Let me cite only three examples where signing an agreement doesn’t necessarily make for a successful mediation.

  • Divorcing couples with children. This is the most obvious example. As anyone who has done many of these mediations knows, it’s not uncommon for parties to “interpret” the agreement in a way that is most favorable to them. Usually, as acrimonious as relations may be, a well-drafted mediation agreement, while it can’t eliminate all hostility between the parties, can help reduce it. The more details that are carefully spelled-out in the agreement, the fewer things there are for the parties to argue about later.
  • More than a few families have stopped talking to one another because of arguments over who should get Aunt Mary’s doll dresser. These disputes, seen from outside the family, are trivial, but to the parties who are caught up in the issues, they are life-and-death. There are really two issues to be decided in any mediation regarding this estate: who gets the doll dresser and how is the family able to retain amicable relations in the future? After all, it’s in everyone’s best interest that the family can continue enjoying getting together for Thanksgiving every year.
  • Business disputes. The dispute begins as a bump in the road, turns into a pothole, and finally emerges as a drop off a cliff. On the surface, the mediation is about money, but, depending on the relationship of the parties, it may have much more to do with if and on what terms the professional and personal relationships continue. Defining “success” as resolving the monetary issues may be only part of what the parties see as a successful mediated agreement.

It’s only natural for a mediator to focus on scaffolding an agreement that deals with the nuts and bolts of a dispute. There can, however, be a difference between drafting an agreement that everyone signs and having an agreement that works for everyone. – John Buckley