R. Wayne Thorpe is the Atlanta office director for JAMS Inc., and he is an adjunct professor at the Georgia State University College of law, where he teaches an ADR course.
Jennifer Boyens Victor is the Managing Partner of Paquin Victor LLP in Marietta, Ga., and a practice leader of the firm's Alternative Dispute Resolution and Conflict Management Services Group. She is former deputy director of the Georgia Office of Dispute Resolution and is a registered mediator with the office.
Most people who have participated in mediation, whether as a party, advocate, or neutral, at least have a general understanding that settlements reached in mediation should be reduced to a writing. Notwithstanding this generally accepted concept, many mediations end with a settlement that either isn’t documented before the medication concludes, or is only documented as to “key points.”
Recent cases have grappled with the enforceability of mediation settlement agreements and other issues related to unwritten and partially written mediation settlement agreements, with a wide variety of results and analysis. Similarly, statutes and rules take varying approaches to enforceability and other questions involving unwritten and partially written mediation settlement agreements. At least superficially, these variations among applicable cases, statutes and rules suggest a possible fundamental policy disagreement over whether oral mediation agreements should be enforced.