Several weeks ago, I attended the American Bar Association Section on Dispute Resolution’s Spring Conference. One of the presentations discussed how to prevent a case from unsettling. That is, what preventive steps can be taken to insure that a mediated settlement agreement is not later unraveled by a court. One of the speakers, Melvin Rubin, Esq., provided a checklist of seven questions to be asked to each party, preferably in a joint session at the signing of the agreement (or at a minimum in a separate session with opposing counsel present as witnesses.) Essentially, the questions are similar to those asked by a court of a criminal defendant who wishes to plead guilty . The questions are:
“1. Have you read the agreement?
2. Do you understand the agreement?
3. Have you asked your attorney any questions you might have and has she answered those satisfactorily?
4. Are you signing this agreement voluntarily?
5. Do you understand by signing this agreement you are entering into a fully enforceable contract?
6. Is there anything physical, psychological or emotional that would have prevented you from understanding what we did here today?
7. Do you understand that I have acted exclusively as a neutral mediator and have offered no legal advice to you? “
Although the questions are simple, they certainly cover most of the possible reasons or avenues that a party may use subsequently to request a court to overturn a settlement: failure to read and/or lack of understanding of the agreement; lack of voluntariness in signing the agreement and/or physical, emotional or psychological disability preventing the party from fully understanding the settlement and its terms. To explore these areas will take not much more than an additional few minutes. In short, this procedure appears to be a simple way to insure a durable settlement.
While these questions are phrased in terms of having a mediator ask them to each party with their respective attorneys present, there is no reason why the parties themselves can not ask questions 1-6, inclusive, of each other to make sure everyone understands what is about to occur. In sum, these questions seem to provide the means to keep all sorts of settlements from unraveling, from the simplest to the most complex!
. . .Just something to think about.