A common non-monetary provision in a settlement agreement is whether the settlement terms will be (or in some cases legally can be) confidential. The parties can agree, with certain exceptions, that a mediated settlement agreement is confidential, typically with carveouts for insurance carriers, tax preparers, and others who have a legitimate need to know the outcome, and will keep the terms confidential. Other terms can be more controversial: reinstatement of a former employee, a non-compete clause, or a non-disparagement clause, for example.
Mediators have different styles when it comes to bringing up non-monetary settlement terms. Personally, I prefer to bring up the subject, though not the details, before the mediation session has begun. If the parties do not agree to discuss non-monetary terms directly in their mediation briefs, and to share their briefs with each other, a separate, “Mediator‘s Eyes Only“ addendum can be sent to the mediator, addressing the thorny points that don’t start with a dollar sign.
The subject of non-monetary terms should be raised again during the joint session, which most mediators hold with the parties and their counsel to go over the ground rules. I might suggest to one of the parties that while I’m having the first private caucus with the other party that the first party discuss privately with counsel any non-monetary terms that are important to include, or that might be problematic if second party raises them.
There is another school of thought that says that a mediator should not widen the gap between the parties by raising non-monetary issues. I believe most parties to a mediation want one thing from the mediator: closure. This is consistent with my overall view on litigation, “All’s well that ends.” By leaving those nagging little non-monetary issues out of the discussion, or only raising them when a mediated settlement agreement is about to be signed, the parties run the risk of dragging the mediation out to another day or, potentially, a few weeks of phone discussions between the mediator and each of the parties, trying to hash out the last few terms.
I am not suggesting that a mediator should be suggesting specific non-monetary terms to parties. That’s because the mediator is not acting as any party’s legal counsel, nor as all parties’ legal counsel. The mediator‘s goals are to help the parties get on with their lives and occupations, and, if possible, to conclude the mediation the same date begins. More on that subject in a later post.
—Louie Castoria