- © Marie Walker
Not that I’m so smart. Or that I know everything. But I was really pleased when I recently learned a new mnemonic for Mediation Theory. The actual concept is not new, but the acronym, B-SMART, is. Thanks to Wayne F Regina, and his book, Applying Family Systems Theory to Mediation, for introducing it to me.
The B-SMART Agreement
Of course, every mediator knows that mediated agreements should be:
That is, they should B-SMART.
In her article, The Difference Between a Mediated and a Litigated Agreement , Mediator Clare Piro says the first thought that comes to mind when comparing mediated to litigated agreements is that “a mediated agreement would have terms that are balanced.” By balanced, we mean that the agreement is clearly fair to the interests of all parties.
Of his decision to Order the Detroit Bankruptcy Case to Mediation, Judge Steven W Rhodes recently wrote in MILawyers Weekly :
Mediation was also important because, as an ongoing enterprise, Detroit would need to restore its relationships with all of its constituents, including its creditors, which only mediation could facilitate. A litigated result, while legally possible, would further sour the city’s relationships for years to come. So the Detroit bankruptcy case needed to be resolved through mediation.
In other words, the stakeholders, who were legion, in the Detroit Bankruptcy needed more than mere agreement sanctioned by law. It was imperative to craft a balanced agreement, taking into account the interests of all the parties.
Mediator Alona Gottfried explains further, in her Blog, that a mediated agreement “ should be balanced and create mutual obligations, so that both parties feel that they are giving and getting something.”
Pretty much, the reason parties find themselves in litigation is that their original interactions and agreements were warm and fuzzy, loosey-goosey, and non-specific. As long as everyone is blinded by the luster of a new deal or a new relationship, warm and fuzzy and loosey-goosey work fine. But when the luster wears off, the problems begin.
For example, divorcing parents, with all good intentions, will agree to “reasonable parenting time, “with no specific parenting time schedule, in order to appear flexible and reasonable. For a while, things may work out fine. Then, again, it’s all fun and games until one parent violates some unspoken expectation. Then it’s all “you- can’t-take-the-children-on-vacation-because-you-didn’t-clear-it-with-me-first.”
And they’re off to the races.
Having a specific back-up parenting time schedule for times when “reasonable” parenting time is no longer within the realm of “reasonable” is a gift that domestic mediators should and must give to parties (or at least suggest it).
The same goes for all mediated agreements. How and when will one party pay the other the debt that is owed? What precise monthly amount? What date of the month will it be paid? How many months or years until the debt is paid off?
It only makes sense to help parties make specific agreements. They can do loosey-goosey on their own. They deserve their mediator to guide them to a specific agreement.
That said, I have written agreements without specific details, in circumstances where one party isn’t so gung-ho on holding the others’ feet to the fire. They want to say they came to a mediated agreement, even if their heart wasn’t in it. Case in point: the manager in a mobile home park who felt it was unfair of the owner to charge evicted tenants a huge sum for damages to the mobile home they had been renting. The manager did not want a specific agreement, because she wanted to give the evicted tenants a break.
How do the parties know if their mediated agreement is working? They need measurable terms in their agreements. If one party says he’ll mow the lawn for the other party, how does the court measure whether he’s living up to his end of the bargain? Perhaps he meant he’d mow the lawn once, and the other party understood him to mean he would mow the lawn until the end of eternity. There’s no way to measure whether the agreement is honored or breached. This relates, in some ways, to the specificity of the agreement, as well.
The agreement should state something measurable, such as Lawn Boy agrees to mow Allergic Girl’s lawn weekly, for two years, beginning June 1, 2017. That can be measured. Is Lawn Boy mowing the lawn weekly? Has two years passed?
An added benefit to writing measurable terms into agreements is the fact that that which is measured increases.
Even though it is measurable and specific, many judges I know would prefer not to endorse Lawn Boy and Allergic Girl’s agreement, because they would not find it to be achievable. Given human nature, how likely is it that Lawn Boy will be able to honor his commitment to mow the lawn weekly for two years?
As a mediator, though, I like to accede to parties’ creative solutions. You know, Lawn Boy is trading out that lawn mowing for something he wants Allergic Girl to do for him. Maybe she agrees to do his laundry while he’s mowing the lawn? We don’t know everything about everyone. Lawn Boy and Allergic Girl may be able to pull this off.
Still, it’s a good idea for a mediator to explore reality with the people in mediation. How would look, to have Lawn Boy mowing the lawn every week while you’re doing his laundry? How might each of you feel? What is the likelihood that this agreement will stand the test of time?
In the Detroit Bankruptcy case, city employees and former city employees were unwilling to give up a portion of their pensions to settle the bankruptcy case. I can certainly see their point. However, had they held their position, and had the city agreed to adhere to its original contract with employees, that element of the agreement would not have been achievable. There simply was insufficient money. No point putting unachievable terms into an agreement.
Along those same lines, mediated agreements should be realistic. Parties sometimes come to mediation with unrealistic expectations and positions. It’s the mediator’s responsibility to ground the parties in reality by questioning their positions. If one party demands a $1,000,000 settlement, and the other party counters with a $50 settlement, chances are that both parties are unrealistic. An agreement with unrealistic terms is no better than an agreement with unachievable terms.
This is the time a mediator might ask, “Have you spoken with your attorney about what the law says in this case?” There’s nothing like stare decisis and court dicta to bring parties back to reality.
Sometimes, what a party wants just ain’t gonna happen. Like when one party wants the other party to return precious family heirlooms that were spitefully sold at a garage sale after the first party left the home. Where on earth might those heirlooms be hiding? Your guess is as good as mine. It would be unrealistic to write a mediated agreement that says the seller shall make the heir whole by returning the heirlooms.
The heirlooms are gone. No use crying over spilt milk. No use putting unrealistic terms into a mediated agreement.
The element of time (and timing) is important to include in a mediation agreement. What are the terms of the agreement as far as time and timing? When will the parties begin enacting the agreement? Keep in mind that change does not happen suddenly, but as the result of thoughtful planning. If one wants to quit smoking, she will be less successful if she simply declares her intention and launches into cessation immediately. The mind needs time to plan and prepare for change.
What are the elements of time and timing in this agreement? Will the parties gradually work their way to one goal or another? Or will they quit (or begin), cold-turkey? How long will the transition take? When will the parties expect to see the “finished product” of the agreement?
It’s important to consider the specifics of time when writing the mediation agreement.
In the heat of the moment, in the thrill of victory, in the hullabaloo of finally reaching consensus, the mediator needs to be sure to dot the i’s and cross the t’s by writing a B-SMART agreement.
About the Author
Marie Walker is a family law attorney, mediator, and elder law mediator in Traverse City. She is currently a Co-Chair of the Grand Traverse-Leelanau-Antrim (GTLA) Bar Association ADR Committee; Past President of the GTLA Bar Association, and Past President of the GTLA Bar Women Lawyer’s Association. Along with being a member of the Michigan State Bar Association’s ADR Section, she is a member of the 13th Circuit ADR Committee. She is a regular mediator and training coach for Conflict Resolution Services of Traverse City.