Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today
Mediate.com

You Must Sign On The Dotted Line

by Phyllis Pollack
September 2010

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

Recently, a California appellate court re-affirmed the requirement that the parties, themselves, and not their attorneys, must either sign a settlement agreement or agree to it “on the record” in open court, for it to be enforceable. An attorney doing either as the “authorized agent” of her client is simply not good enough!

The facts in Critzer v. Enos, Court of Appeal of the State of California, Sixth Appellate District, Case No. HO33913 (August 30, 2010) are simple. David and Margaret Critzer, who owned a townhome in a Cupertino development known as Northpoint got into a dispute with their neighbor, Jerry Enos, over a window he was installing in his upstairs bathroom. They claimed, much to their dismay, that the window’s placement allowed Enos to look directly into their living room and, conversely, they could look directly into Enos’ master bedroom. The Critzers’ alleged they received no notice of this proposed installation as required by Northpoint’s CC&Rs and strongly objected to it. So, they sued not only Enos, but the present owner – Darien A. Tung and the Homeowners Association (“HOA”).

Just prior to the start of the trial, the case settled. The terms of the settlement were recited in open court on the record and agreed to by the Critzers and Darien Tung; however, Enos and the HOA were not present.

Several months later, when the parties were unable to reach a consensus about the language of the formal settlement agreement, the HOA brought a motion to enforce the settlement under California’s Code of Civil Procedure §664.6. ( C.C.P. 664.6)

Although, the trial court granted the motion, the appellate court reversed concluding;

“. . . because there was neither an oral settlement all parties personally agreed upon, nor a written settlement agreement signed by all of the parties, the court lacked authority under the summary procedure of section 664.6 to enforce any settlement.” (Id. at 2).

In support of its conclusion to reverse, the appellate court noted earlier decisions interpreting the term “parties” in CCP §664.6 “. . .literally to mean the litigants themselves.” (Id. at 12) or “ “ namely the specific person or entity by or against whom legal proceedings are brought.” ” (Id.). Personal assent of the parties themselves is required as it:

“ “. . .tends to ensure that the settlement is the result of their mature reflection and deliberate assent. This protects the parties against hasty and improvident settlement agreements by impressing upon them the seriousness and finality of the decision to settle, and minimizes the possibility of conflicting interpretations of the settlement [citations]. It also protects parties from impairment of their substantial rights without their knowledge and consent [citation].” ” (Id.)

Consequently, even the spouse of a party or an attorney signing as the “authorized agent” of the party will not suffice. Only the party herself can agree to a settlement, for it to be enforceable; anything other than the party’s personal and direct participation is not acceptable to a court! (Id. at 13-16).

Unfortunately, I have sometimes had the situation in which one of the parties is appearing by telephone. If a settlement is reached, I ask whether the party attending by telephone is reachable by fax or email so that we can send the settlement agreement to her for signature and have her return it. Sometimes, this is possible; sometimes it is not. In those instances in which it is not possible, I have the concern raised by this latest appellate decision: that while the parties think they have settled, it is not enforceable until all of the parties personally execute a settlement agreement. All of their hard work at resolving the dispute may go for naught simply because the telephonic party is not able to sign the agreement!

So. . . while it is understandable that a party may not be able to appear in person at mediation, it is imperative that some technological means be worked out to allow the party to personally sign a settlement agreement; otherwise, there may be no “true” settlement in the eyes of the court.

. . . Just something to think about.

Biography


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.



Email Author
Website: www.pgpmediation.com/index.htm

Additional articles by Phyllis Pollack

Comments