The Closer

A Mediation Newsletter November 2011

Writing with Clarity and Accuracy
by James Rainwater

A successful mediation concludes with the drafting of the settlement agreement. After, perhaps, hours or long days, the agreement to settle hangs on that one document that all parties have signed. Everyone is tired, bleary-eyed, and anxious to leave the conference. Yet, a few minutes of careful proofreading may prove invaluable.

As much as I love the English language and have taught it, I am constantly surprised at the ease of miscommunicating an idea - simple or complex - in writing. In our profession, of course, words have meaning. Punctuation has meaning. Syntax has meaning. The problem, however (and please pardon the pun), is ensuring that everyone is on the same page when it comes to the mediated agreement.

First, be sure that all details and issues have been included and addressed. During the drafting, the agreement is a work in progress and can be tweaked. However, both parties need to be certain that the agreement is fully inclusive and leaves nothing to speculation or misinterpretation.

Second, be sure that all dates, monetary amounts, cited codes, etc., are correct. Both attorneys should be in agreement as to these particulars. It is equally important that the clients understand these as well and agree that they are accurate and represent ideas and duties that are practical, achievable, and will be honored by both sides.

Third, be sure that the actual wording of the document makes sense. Sentences should not leave any loose ends. Prepositions are important and need to properly place the matters at hand. Start dates and end dates should be clearly defined. If an event is to occur, specify the actions, location, and exact dates and times necessary.

Last, the attorneys should read, re-read, and re-read again. Even with multiple sets of eyes looking at the same thing, mistakes and omissions can occur. Attorneys should also be certain that their clients are in complete agreement and understanding of the settlement agreement's terms. Assure your client that it is proper to take adequate time to read the entire document, and you can answer any questions or address any concerns the client may have. The time spent double-checking the final version of the mediated settlement agreement is time well-spent.

Rainwater Law