Crossing the Line

Recently, a Massachusetts case circulated around the American College of Civil Trial Mediators, of which I am a member. The opinion denies a motion to dismiss by a divorce mediator who had been sued for legal malpractice arising from his drafting of a separation agreement.

While the case application in this venue and beyond divorce is unclear, it certainly has caught the attention of the mediation community and is likely to invite further debate on a topic that has often been discussed within our organization.

The reminder for all of us is the importance of memorializing a settlement agreement at the end of a successful mediation. Customarily, in Alabama, the mediator will propose a draft of the essential terms of an agreement. However, the attorneys – not the mediator – are required to draft and include all important terms of the agreement.

I often encourage parties to bring to the mediation a release for execution in the hopes that the case settles. By executing the final release on the day of the mediation, there is clarity of terms and the “closing” process is expedited, disposing of the need for post-mediation drafting of a final release.

In large or complex cases, the parties are advised to identify the various settlement terms that will be required early in the negotiation process, avoiding uncertainty at the end of negotiations.

This recent case is a good reminder that, although mediators may actively help inform both parties in negotiations, they may not give legal advice. Final decisions regarding the settlement terms are crafted by the disputing parties.