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Enforcing Agreements Made At Mediation
You and your clients have just gone through a lengthy mediation. After hours of hard bargaining, a settlement finally is reached. How should you memorialize your agreement to assure that its terms will be enforced? Can you be confident that the settlement will not unravel because one or more of the parties has had a change of heart? These are questions that frequently concern parties who are thinking of using mediation. Fortunately, I have found as a mediator that it is not difficult to create and enforce a binding agreement if you follow a few simple rules.
- First, and most importantly, everyone whose authority is necessary in order to settle should be present at the mediation. If any such persons are absent, their written authority or consent must be obtained, either by facsimile transmission or other available means before the mediation has been adjourned.
- Once you are satisfied that due authorization has been obtained, all terms and conditions of settlement should be summarized in the presence of all participants. The terms should then be reduced to written form that is signed by all parties. I refer to this document, which is often handwritten, as a "Memorandum of Settlement."
- After all parties have executed the Memorandum of Settlement and the mediation has been adjourned, the attorneys may wish to have the parties sign releases of liability and sometimes a more formal settlement agreement. Where additional settlement documents are to be used, care should be taken to state expressly in the Memorandum of Settlement that it is intended to be a binding agreement and not a mere statement of intention to agree in the future. If the terms of settlement are not complex this second step can be eliminated if the attorneys bring to the mediation a standard form of release for all parties to sign.
- Care should be taken not to run afoul of Evidence Code '1152.5, which provides that evidence of anything said in the course of a mediation is inadmissible in court and that all communications among the participants in a mediation are confidential. One court has held, under a broad interpretation of Section 1152.5, that the settlement agreement was inadmissible as a confidential communication. See Ryan v. Garcia (1994) 27 Cal.App. 4th 1006, 1011; but compare Regents of University of California v. Sumner (1996) 42 Cal.App. 4th 1209, holding that the terms of a settlement dictated into a tape recorder and later transcribed could be admitted into evidence and enforced through summary judgment since ". . . the parties concluded their mediation session, and then created a transcript of the settlement they had reached in order to memorialize the agreement . . .. The transcript of the settlement was not a part of the mediation session . . .. " (Id. at pg. 1213.) In order to avoid a Ryan-Garcia problem, the Memorandum of Settlement should specifically state that it shall be admissible in evidence in any action or legal proceeding to enforce its terms. I actually include a statement to that effect in the written agreement to mediate that I ask the parties to sign before the mediation begins.
- Should a party refuse to comply with the terms of a written settlement agreement, and if the matter is already in litigation, then a motion for enforcement can be brought pursuant to Code of Civil Procedure '664.6. This section states that "If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, on motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement."
- In cases where the dispute has not gone to litigation, the parties can appoint the mediator as an arbitrator for the sole purpose of rendering an award conforming to the terms of their written agreement. Either party would then be able to petition the court for the entry of a judgment confirming that award.
- Enforcement of an agreement to settle that has not been properly documented is problematic. In addition to the obstacle of Evidence Code Section 1152.5, an oral agreement to settle made outside the presence of the court is not enforceable under C.C.P. '664.6. Murphy v. Padilla (1996) 42 Cal.App. 4th 707. Such an agreement may be enforceable by an action for damages, or perhaps even an action for specific performance, but those remedies are obviously unsatisfactory since the whole purpose of mediation is to avoid further litigation.
 Biography
Michael Carbone is a full time neutral whose practice focuses primarily on construction claims and defects, real estate, business disputes and complex litigation. He has mediated and arbitrated for approximately ten years. He has served as a court-appointed referee in real estate and business matters.
He is a past president of The Mediation Society, a member of the State Bar Standing Committee on ADR, the ADR Committee of the State Bar Business Law Section, and the Board of Directors of the California Dispute Resolution Council.
He practiced law for more than thirty-five years. His practice emphasized commercial real estate and general business matters, including litigation of construction, real property, land use, and business cases.
Email Author
Website: www.mygoodoffices.com
Additional articles by Michael P. Carbone
Comments
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| Louis ,
Gibsonton fl |
08/11/08 |
| divorce mediated agreement |
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Can a mediated agreement be rendered null and void... example, one of the parties immediately engages in actions the would make it impossible to abide by the terms of the agreement.
i.e. one of the terms- week end visits, one per month... however, one month after the agreement is reached, the custodial parent moves/sends the child out of state. now the grandmother is raising child. Custodial parent is a part time parent. |
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| ana ,
Olympia WA |
fordreamers@yahoo.com
04/19/04 |
| About agreements |
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Michael, Thank you for clarifying 'enforcing agreements.... Sometimes the edges get fuzzy when the agreement is complex and emotionally
charged. Having simple guidelines, based on legalities, is helpful when a mediator is not a lawyer. Ana |
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| Tracie Burns,
Dallas TX |
tmburns@flash.net
02/06/03 |
| Enforcement in EEOC cases |
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So how do we enforce if there is no case filed in a court before the mediation? Merrill Lynch agreed, we all signed, now they're saying they want much more confidentiality before they pay. Where do we turn? |
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| john cleary,
brisbane |
jcleary@relateqld.asn.au
01/29/03 |
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As well as all the procedural things that Michael covers so well there are the process skills. Surely if the problem is explored to all parties' satisfaction and their agreements flow from their own understanding and abilities it is unlikely that agreements will fall over. If they do I invite parties to reconvene immediately. Often the first series of meetings has now flushed out what really needs to be addressed.
As a foreigner I offer the observation that if legal systems are too ready to enforce mediated agreements prior to registration the risk is that parties will be too inhibited to use mediation. The mediation process always runs the risk of being |
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