Attorney at law(Simont Braun)
Accredited mediator in civil and commercial matters
Introduction
Mediation is often praised in legal literature for its flexibility, its creativity, and its ability to transform even the most entrenched disputes. But what academic articles rarely mention is that mediators themselves sometimes fall into traps - subtle, almost invisible traps - often created by their own enthusiasm.
This short contribution offers two “field stories” illustrating how good intentions, combined with a desire to move things forward, can accidentally destabilise the mediation process. Both episodes revolve around a central theme: in mediation, going too fast may feel productive… until it isn’t.
I. The dangers of the partial settlement
1. When a partial settlement looks like a brilliant idea
The first story begins in a room where trust had long evaporated.
One party demanded, as a first step, immediate payment of a partial amount that it described as “undeniably due”.
The other party, convinced it had suffered breaches of a non‑competition clause, refused to budge without additional guarantees in this regard.
After two very long meetings of three hours each, a seductive idea appeared: “What if parties start with a partial agreement?”
The uncontested amount would be paid via the mediator’s third-party account. In exchange, the parties agreed to enter into a partial settlement agreement limited to a renewed non-compete and non-solicitation undertaking, intended to serve as a clear stepping stone toward a final settlement addressing the remaining balance of the claim and the other disputed issues.
The plan seemed perfectly reasonable.
2. When the bridge turns into a minefield
Drafting a new non‑compete clause - mid‑mediation, with both parties highly suspicious - turned out to be ambitious. Every proposed word became a potential threat. Every sanction mechanism sounded like a trap. We were no longer resolving the dispute but we were rather widening the gap between the parties’ respective positions.
Moreover, as negotiations on the partial settlement progressed, it became increasingly apparent that one party would achieve its primary objective through the partial settlement, namely the inclusion of a new non-compete clause. By contrast, the other party would recover only part of the amount it claimed was undisputedly owed, while at the same time relinquishing its principal negotiating leverage on the non-compete issue.
And then also came the question “What happens if parties do not reach a global agreement afterwards?”
The legal counsels explored the consequences: (i) reinstated claims,
(ii) potential damages for breach, (iii) possible requalification of the contract.
The more they clarified, the more the mistrust grew. By the end, the partial agreement - which was supposed to defuse tension - had fuelled it.
3. What lessons can be learned from this experience?
From this experience, I now consider partial agreements with a more critical eye.
Partial settlements can be a useful tool in mediation, yet they must be approached with caution. The mediator’s role is not merely to facilitate an agreement on isolated issues, but to ensure that any partial settlement contributes constructively to the overall resolution of the dispute. In this respect, several principles should guide the mediator’s handling of partial agreements.
a) Assess the appropriateness of a partial settlement
Before endorsing a partial settlement, the mediator must ensure that the parties fully understand its implications. A partial agreement should remain coherent with the ultimate objective of resolving the dispute in its entirety. Importantly, the mediator should guard against a partial settlement that effectively deprives one party of essential bargaining leverage, thereby altering the balance of negotiation in a way that may compromise the fairness and viability of the overall resolution.
b) Formally frame the partial settlement
A partial settlement must not create the illusion of progress while freezing the substantive discussions that remain necessary. To avoid such a risk, the partial settlement agreement should be carefully and explicitly framed, clearly identifying the issues that have been settled and those that remain outstanding.
Accordingly, the mediator should ensure that:
The partial agreement is explicitly presented as not constituting a full settlement, and that other matters remain unresolved.
Where feasible, a timetable is established for addressing the remaining issues, or a provision is made for the resumption of mediation at a later stage.
c) Maintain the momentum of dialogue
The mediator must ensure that the partial settlement does not disrupt communication between the parties or lead to a stagnation of negotiations. The aim should be to preserve the momentum of dialogue and to encourage the parties to continue their discussions in good faith, with a view to achieving a comprehensive resolution.
d) Prioritise durability over speed
Finally, mediators should resist the temptation to move too quickly or to seek overly efficient outcomes. While efficiency is often desirable, the priority in mediation should be the durability and sustainability of the agreement.
A partial settlement should therefore be pursued only where it clearly enhances the prospects of a durable resolution, rather than merely creating a superficial sense of progress. It should also be contemplated only where it can be implemented with relative ease and does not require complex or protracted negotiations. Failing that, the parties may be better advised to address all outstanding issues comprehensively within the framework of a final settlement agreement.
II. The fragility of the oral agreement
Mediation is a structured process made up of distinct, sequential phases, each with its own purpose and role in guiding the parties toward what is known as a “wise” agreement.
The final stage of the process - the decision‑making phase - precisely aims to achieve this “wise” agreement, i.e. one that balances the interests of all parties, is durable over time, respects those affected by its consequences, preserves the relationship between the parties, and remains fully in line with public policy[1].
1. The euphoria of a verbal consensus
Here is my second story, which involves the (difficult) separation of two business partners in a mediation without legal counsels, a factor that undoubtedly played a role in the sequence of events that followed.
After having completed all the phases of the mediation during three meetings and a complicated negotiation phase, the parties had finally reached a solution during the last “decision-making” phase. Everyone was relieved, exhausted, but satisfied.
As usual, I allowed the parties to part ways on this oral agreement, and then I followed up by sending the terms of the agreement in writing (bullet points) in preparation for drafting the formal mediation settlement.
2. The overnight collapse of the oral agreement
The next day, one party called me: he had re‑checked his calculations. The agreement, in his view, could not be signed “in its current form”, and should therefore be adapted.
The agreement that had been so proudly built the day before had thus evaporated in less than 24 hours.
3. Back to square one - Almost
After much reassurance and careful reconstruction of trust, especially for the party who thought the agreement was final (already), they both accepted to return to the table. The renegotiation took place mostly in caucus, with great care.
This time, once consensus was reached, I invited the parties to sign a term sheet outlining the key points of the agreement, which was still to be incorporated into the mediation settlement.
4. What lessons can be learnt from this experience?
Even the sincerest verbal agreement is subject to fatigue, external advice, second thoughts, recalculations, emotions returning after the adrenaline fades.
a) Never consider a verbal agreement as final
Nothing can be considered binding until it is clearly formalized - ideally signed or, at minimum, reviewed and acknowledged by all parties.
Accordingly, it is recommended to draft a written record of the points agreed upon at the conclusion of the session and to review it with the parties to ensure mutual understanding and clarity, especially where they are unassisted by legal counsel.
b) Remain neutral in case of a reversal
Should a party change their position, the mediator must remain neutral and help both sides understand that mediation is a voluntary process, that commitments only take effect once clearly agreed upon, and that doubts arising after an intense session are natural and do not negate the progress already achieved.
c) Do not “punish” retraction
Importantly, the mediator should never “punish” a party for retracting. A change of mind does not necessarily indicate bad faith; it can reflect a need for emotional processing, a misunderstanding during the session, or a requirement for external validation from an accountant, lawyer, or supervisor.
d) Gentle follow-up to overcome setbacks
Following up the retractation to clarify the situation is essential, but it should be done without pressure. This entails re-engaging the parties and proposing a follow-up session to uncover the reasons for the reversal, while carefully steering the discussion past the setback toward a final agreement.
The process must be handled delicately to avoid forcing the parties. The strategic use of caucuses in such a configuration can be highly effective.
Conclusion: Slow is smooth, and smooth is fast
These two episodes, though very different, converge toward the same lesson:
the mediator’s greatest ally is not speed, but sequencing.
Legal scholars often highlight the flexibility and adaptability of mediation. My experience suggests adding another virtue to the list: the discipline to slow down when necessary.
In mediation, as in many things, what lasts is rarely what is rushed.
[1] F. Laune, et A. Faes, « Médiation et promotion immobilière », Jurim Pratique, 2023/3, pp. 230 231.