Each year for the last 10 years, the ADR Section of the State Bar of Michigan has teamed up with the Institute for Continuing Legal Education to sponsor the Advanced Negotiation and Dispute Resolution Institute (ANDRI). It is the premiere ADR event in Michigan, and I’ve been honored to present a workshop at it almost every year. The last couple years, I’ve focused on the agreement-writing phase of mediation. It doesn’t get too much attention in the basic mediation training, but it’s a critical phase of the mediation that could determine whether all the mediation work leading up to it results in a durable agreement.

Last year I shared the podium with Prof. Vince Wellman, who teaches Contracts at Wayne State University Law School. Vince is also a trained mediator, and he developed a template for mediation agreements, which I helped modify for “real-world” use. In our workshop at ANDRI last year, we focused on the details of the agreement-drafting portion of mediation. To view our template, click here: Agreement Template. I’ve since modified the template into a Checklist, with the assistance of community mediators who offered comments about how it could be most helpful to them. To view the checklist, click here: Agreement Checklist.

This year, I addressed a different aspect of the mediation agreement: how the mediator can help ensure that the parties reach a “durable” agreement that will not only survive a subsequent challenge to its enforceability, but will not even invite such a challenge. Prof. James Coben (last year’s ANDRI keynote speaker) and his team at Hamline University Law School have found over five hundred U.S. cases where mediated agreements were later challenged in court, and they have converted some of them to video clips (http://law.hamline.edu/adr/mediation-case-law-videos.html). We viewed some of these in my workshop yesterday, then tried to answer the query, What could the mediator have done differently so that this agreement would not be challenged in court? Some answers are obvious: monitor parties’ ability to participate meaningfully in the process, don’t berate a party, don’t alter an agreement at the request of one party after the mediation, ensure that parties understand the binding nature of the document they are signing. Some are less clear: if an obviously-ill party is represented by counsel, who insists that the mediation should proceed, should the mediator override their request?

We also viewed some Michigan cases determining enforceability of a mediated agreement. I have collected all the ones I know of, and they were included in the materials. I told the audience that I would be happy to become the repository of these cases, so if you come across one, please send it to me. As far as I know, none are published, so we don’t have any precedent yet in Michigan, but they are still instructive as to how the Ct of Appeals views this issue. In general, the Court upholds mediation agreements, and trial courts’ modifications of them. To view the compendium of  cases I’ve collected, click here: Michigan Case Law on Enforceability of Mediated Agreements.