Normally, we think it is quite important for the mediator to draft the ultimate agreement
between the parties rather than leave that to one of the parties’ lawyers because it minimizes strategic
maneuvering by the drafting lawyer which can lead to a dynamic between the lawyers to gain the upper
hand. So while it is important for the lawyers to be included in reviewing and fine tuning the draft, the
mediator needs to be very active in ensuring that the lawyers’ input even on very technical matters does
not undercut the parties as the ultimate decision makers. So we recommend that parties be included in
all conversations and written correspondence between the mediator and lawyers even regarding what
appears to be technical information.
