Mediation - Part IV

B. Mediated Settlement Agreements.

1. Mediated settlement agreements reached at a court ordered mediation are unenforceable unless signed by the parties and their counsel. Fla. R. Civ. P. 1.730(b). However, at least one court has held that a mediated settlement agreement which was not signed by counsel, but was signed by the parties was not rendered unenforceable based upon such a technical deficiency where the parties conducted themselves as if they had reached a binding agreement. Jordan v. Adventist Health System/Sunbelt, Inc., 656 So. 2d 200 (Fla. 5th DCA 1995).

2. Further, mediated settlement agreements may not may be enforced where a party can demonstrate that the agreement was reached through coercion or any other improper tactics utilized by the mediator. Vitakis-Valchine v. Valchine, 793 So. 2d 1094 (Fla. 4th DCA 2001). If the mediator fails to substantially comply with the requisite practices and procedures, no party to the mediation may “rightfully claim the benefits of an agreement reached in such a way.” Id. at 1099.

3. Based upon the court’s inherent power to maintain the integrity of the judicial system, a “court-ordered mediation settlement agreement obtained through violation and abuse of the judicially-prescribed mediation procedures” may be invalidated. Id.

4. Cases settled in mediation are not suited for the liberal application of Florida Rule of Civil Procedure 1.540(b) allowing rescission of a settlement agreement based on unilateral mistake because mediation, like arbitration, is an alternative dispute resolution device and a more stringent standard of review applies. Tilden Groves Holding Corp. v. Orlando/Orange County Expressway, Etc., 816 So. 2d 658 (Fla. 5th DCA 2002).

C. Mediation Impasse

1. There may be various reasons for impasse. A party may truly evaluate its case or its opponent based upon significantly different criteria, making the parties' settlement negotiation ranges too far apart to broach. In that instance, the parties may feel they would be better served having a third party, such as a judge, jury or arbitrator decide the pending dispute. It is important for the parties in such a case to fully understand the range of possible outcomes, along with the costs of going forward, including all legal fees, expert fees, deposition costs and other court costs.

2. Sometimes the parties are not able to reach a compromise because one or more parties are emotionally vested in their case or the events that lead up to the dispute. In that instance, the emotional party often needs to feel they had the opportunity to tell their story, whether at the mediation or at a hearing. This need cannot be underestimated as a prerequisite for settlement, especially where an apology can be given.