Mediation Settlement Agreements: They’re Doubtful Without a Writing Chapter 39
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. The authors wish to acknowledge the assistance of Duane W. Krohnke, formerly a partner in Minneapolis’s Faegre & Benson, for his assistance in the preparation of this article.
A decision reversed one of the cases we discussed in “Mediation Settlement Agreements: Legal, Ethical, and Practical Issues,” 16 Alternatives, 93 (July/August 1998)[Editor’s note: See previous chapter], which was about the impact of certain cases and statutes on the enforceability of unwritten and partly written mediation settlement agreements. The subsequent opinion adds to the continuing dialogue on the enforceability issue.
In Haghighi v. Russian-American Broadcasting Co., 945 F. Supp. 1233 (D. Minn. 1996), a defendant argued that a written mediation settlement agreement was not enforceable because of the agreement’s failure to state expressly that it is binding as required by a Minnesota statute:
A mediated settlement agreement is not binding unless it contains a provision stating that it is binding and a provision stating substantially that the parties were advised in writing that (a) the mediator has no duty to protect their interests or provide them with information about their legal rights; (b) signing a mediated settlement agreement may adversely affect their legal rights; and (c) they should consult an attorney before signing a mediated settlement agreement if they are uncertain of their rights. Minn. Stat. Sec. 572.35(1).