The parties labor through hours of negotiations to resolve a hard-fought case. After the congratulating is done, one party is tasked with drafting the release and settlement agreement. Too often, whether over substance or ego, the negotiation over the form of the agreement spoils a good, mediated result. Sometimes, a party will claim that a new term-such as confidentiality-is included for the first time.
Beginning with the end in mind, I recommend when parties agree to mediate, they also immediately circulate and negotiate whose boilerplate agreement will be used assuming the mediation proves successful. The parties will negotiate all non-economic terms and come to the mediation with an agreement ready to be executed. In that way, there is no post-mediation argument over the form or whether a party is trying to sneak in a new term.
If the idea of mediating is to gain a durable agreement that is binding, enforceable, effective, and final, consider agreeing on the form of that agreement before the mediation starts.
Hon. Jay Young (Ret.) is a retired judicial officer with decades of experience presiding over complex civil litigation matters. Following a distinguished career on the bench, Judge Young now serves as a mediator, arbitrator, and court‑appointed special master, and discovery referee. Judge Young brings a disciplined, impartial, and results‑oriented approach to dispute resolution. Judge Young is based in Nevada and accepts appointments statewide and nationally, subject to agreement or court order. He can be reached at 855.777.4557 or info@armadr.com
Known for judicial temperament, analytical rigor, and practical problem‑solving, Judge Young assists litigants and counsel in resolving high‑stakes disputes efficiently and with integrity and employing best practices. He is recognized by U.S. News and World Report’s publication Best Lawyers as Arbitration Lawyer of the Year.