Amanda Bucklow on how to make mediation agreements stick

Amanda Bucklow, who I introduced to readers of this blog recently with the launch of her Mediation Times, has usefully commented on an old post of mine about making mediated settlement agreements more durable.

She says;

'Hello Geoff This is a question I have pondered a great deal recently and in doing so I had two thoughts or even insights:

Firstly, if you are a good mediator then you necessarily build excellent rapport and trust. Yes? If so, then it is likely that the negotiated deal, even after exhaustive reality checking, 'feels right' to the parties at the time and in relation to your (the mediator's) presence. I say this because I believe that the presence of the mediator positively provides an environment where courage and hope are likely to flourish.

The result is mutual respect and even warmth and appreciation at the achievement of a settlement. (The kiss!) It is hard not to respect people who find the courage to do something they thought they never would. There is a change when we leave the parties to get on with it. On their own they can forget their new found courage and perhaps feel less certain without the comfort of the mediator's presence which they had during the decision making process. This can lead to a reversion to previous mental states - generally doubt.The parties may also believe that whilst we are there we are somehow 'controlling' the behaviour of the other party and keeping them 'honest'. Thus, they fear any change or tweaking to the agreement and may start to doubt again.

The second thought was this: I frequently observe an addiction to the conflict! I can't tell you how many times I have wondered what parties (and lawyers!) will do when this is all over! So, many years ago I decided that if I had a sense of that as a possibility, I would spend some time with the party (or parties) talking about what they will do next. Even to the point of putting together a plan. I generally do this during drafting.As in biological life where there is no life unless there is conflict, for some they do not feel quite 'alive' unless they are in a conflict. It defines them as people.

I have said what I do in this case. What I do in the first case is encourage the parties to include a clause in the agreement which says that in the unlikely event that there are difficulties in finalising and implementing the agreement, the first port of call is the mediator. This also gives me the invitation to call or email at my instigation, to ask how things are going and if they need any further input from me. I also make a point of getting everyone's contact details at the same time. And then of course I make sure I do call or email.The other benefit is that my 'presence' is enshrined in the agreement - like a virtual guardian.I think it makes a difference!'