Discovery Violations May Lead to Rescission of Mediated Settlement Agreements
It requires no citation of authority to say that the law favors settlements. Yet settlement agreements are contracts and, as such, are subject to the same defenses to formation or enforcement as any other contract. Last week, Florida’s Fourth District Court of Appeal visited this issue, and held that a mediation settlement agreement predicated on a unilateral mistake of fact could be rescinded where one party withheld material information in discovery. More specifically, the court in Garvin v. Tidwell, 37 Fla. L. Weekly D2506a (Fla. 4th DCA October 24, 2012) announced that, “Since our system of justice depends on truthful discovery, misconduct in discovery must be discouraged by disallowing the settlement which is the fruit of such misconduct.” In…
Read More ›The Challenges of Mediating in Probate (Part 1)
My last few posts have concerned “endgame” tactics to break a mediation impasse. While I have more to say on that subject (particularly “baseball arbitration”), I want to turn my attention here to one of the most challenging types of cases to mediate – probate litigation. The entire probate system is designed to allocate the decedent’s wealth among creditors, heirs, and other beneficiaries. From a purely legal standpoint, then, probate is all about money. If that is true, then probate litigation is perfectly suited to mediation, because it deals with the division of a finite pot of assets. In Florida, our Probate Code seems to promote mediated settlement; Fla.Stat. s.733.815 allows interested persons in a probate proceeding to…
Read More ›Ten Values For Designing a Mediation Through Pre-Mediation Communications
As mediators we want to do our best to give the parties and their counsel value for their mediation day to either resolve their case or to achieve a direction to ultimately resolve their case. Toward this end I have found pre-mediation caucuses to identify, clarify, or organize the following: Rights and defenses of the parties. Presence of necessary parties and participants. Focus on specific factual and/or legal issues. Mediation needs of the parties and/or their counsel. Expectations of parties and/or their counsel. Schedules of the parties that may impact the mediation. The status of the negotiation and any necessary pre-mediation demands or offers. The opening statement -to do or not to do, that is the question. Personalities of parties or their…
Read More ›Is Baseball Arbitration a Viable Mediation Endgame?
My last two blog posts have discussed “endgame” tactics to break a looming mediation impasse. One such tactic is the “Dutch Auction”; another is commonly known as the “Savoy method”. I offer here a third tactic: combining mediation with “single-offer” or “baseball” arbitration. The latter name is derived from the use of this mechanism for salary arbitration in Major League Baseball. Let us assume that at the end of a mediation session, the parties find themselves $1 million apart, with neither party willing to make any further concessions. The parties could agree at that point to settle the lawsuit by submitting the case to an arbitrator, to whom each side would submit one figure at which they would…
Read More ›Traits of the Effective Mediation Advocate
By and large, the attorneys with whom I am privileged to mediate are good at what they do. They persuasively advocate for their client, they give their clients reasonable advice, and they achieve positive results at mediation. Each brings to the table his or her own personal style and approach. However, there are some common denominators in what I see as effective mediation advocacy. The traits of effective advocates reflect an understanding of counsel’s role and the value of the opportunities mediation presents. In our blogs, seminars, and webinars, we have spoken, among other things, of the need to prepare and to listen. What perhaps is not as commonly discussed is the value of being authentic. Someone who is forcing…
Read More ›Early Mediation Anyone?
In general, the benefits of mediating a dispute to a successful conclusion are greatest when done early. In meaningful cases, since success is only possible when the process is engaged and allowed to progress, why not mediate when costs are lowest and the benefits of resolution can be realized soonest? Thomas Jefferson may have thinking about mediation when he said,” Never put off till tomorrow what you can do today”. To learn more about the benefits of early mediation, please download our complimentary webinar on Mandatory or Early Mediation – Benefits for Individual and Commercial Clients. Richard Lord is a shareholder mediator at the firm of Upchurch, Watson, White and Max.
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