THERE’S NO AGREEMENT UNTIL IT'S IN WRITING

Disputes that end with a verbal agreement are likely to fail.

When parties say, “We’re in agreement,” they’re really saying, “I assume you agree with what I think the agreement is,” which rarely is the case.

Regardless of how the ending of a dispute is reached, there is no agreement until it’s drafted as a document that all parties agree to sign.

New Zealand’s Treaty of Waitangi in 1840 is an example of parties having completely different understandings of an agreement. The treaty consists simply of a preamble and three articles. Great Britain prepared drafts of the treaty in both English and the native Māori language. Unfortunately, the two versions are not exact translations. In the English language version the tribal chiefs ceded sovereignty over their territories to the Queen. The Māori language version uses words asserting the Māori would retain full sovereignty over their homes, land, and its resources. The controversy over the translation continues to this day.

Whether the dispute is personal, business, or international, if it ends in an agreement, it should then be drafted, reviewed, and signed in order for it to be legally agreed upon.

Guidelines mediators use to help disputants develop their agreement include:

• Specific and concise language that’s understood by all parties.

• Issues to be resolved in a final, permanent form without conditions.

• Defined key elements of who does what, when, where, and how.

• Clear mutual consideration (when something of value is exchanged).

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Fred Jandt is the author of “How to Survive a Mediation,” available now at Amazon, Barnes & Noble, and wherever books are sold.