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Mediation Case Law Video: A Simple Mediator Mistake Leads to Big Problems

by James Coben
April 2013

This video is part of a series of instructional Mediation Case Law Videos.

James Coben
Catamount Slate Products, Inc. v. Sheldon, 845 A.2d 324 (Vt. 2003) The appellate court reversed the trial court and refused to enforce an alleged oral mediated settlement where intent of the parties to be bound was not established in light of: 1) an unsigned agreement to mediate discussed orally with the parties which expressly stated that mediation would not be "binding upon either party unless reduced to a final agreement of settlement"; 2) post-mediation letters implying that settlement was not final; and 3) evidence suggesting that material elements of a global settlement remained to be negotiated after conclusion of mediation):

Quote from the Court: "[I]n their brief appellants encourage us to hold that a signed writing be required to bind parties to a mediated settlement even when there is no precondition of an intent not to be bound until execution of a final written document. We expressly decline to do so. As we reiterated here, parties to a mediated settlement are free to enter into a binding oral contract without memorializing their agreement in a fully executed document, even if they intend to subsequently reduce their agreement to writing. But, when parties communicate an intent not to be bound until they have achieved a final executed settlement agreement, oral agreements and draft provisions created during and after mediation will not alone constitute the formation of a binding contract."

For the past decade, as part of the annual Minnesota State Bar Association ADR Institute, Hamline Professor James Coben has been producing short videos illustrating mediation litigation. Mediate.com is proud to now assist in the further distribution of these exceptional teaching and learning resources.

This enactment may portray "less than optimal" mediator performance. Rest assured that you are not at risk by hiring any of the ADR Institute Players as neutrals (or lawyers), despite what you see on the tape. The videos are fictional reenactments of the mediations underlying the published litigated cases.

Biography


Professor James Coben, a senior fellow in Hamline's Dispute Resolution Institute ("DRI") which he directed from 2000-2009, teaches civil procedure, dispute resolution practices, mediation, and negotiation. He also pioneered a variety of innovative ADR clinical opportunities for law students, including mediation advocacy on behalf of clients in family law and employment cases. More recently, he has focused his energies on development of international ADR educational opportunities.

Professor Coben created the Mediation Case Law Project - a systematic attempt to catalogue litigation trends about mediation, as well as produce and distribute innovative teaching videos, and other resources to ADR academics, practitioners, and trainers.



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Additional articles by James Coben