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Keeping a Case Settled

by Phyllis Pollack
May 2011

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

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.


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.

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