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Enforcement

 


Buckley v. Shealy, 635 S.E.2d 76 (S.C. 2006) (affirming decision not to enforce mediated divorce settlement last seen at the mediator's office in 1997, where it is unclear what happened to the signed agreement, and the family court never entered a signed copy of the agreement in the record.)

   Buckley Video



Zimmerman v. Zimmerman, No. 04-04-00347-CV, 2005 WL 1812613 (Tex. App. Aug. 3, 2005) (affirming enforcement of mediated divorce settlement against allegation of mediator coercion, where the only evidence presented in support of the claim was the party's -perceptions of the mediator and how the mediator made him feel - evidence the trial court stated on the record it did not find credible).

Zimmerman video



Vitakis v. Valchine, 793 So. 2d 1094 (Fla. Dist. Ct. App. 2001) (remanding to trial court for consideration of wife's allegation that mediator committed misconduct by improperly influencing her and coercing her into agreement, noting an exception to the general rule that coercion and duress by a third party is insufficient to invalidate an agreement between principals). 

Quote From The Court: "During a court-ordered mediation, the mediator is no ordinary third party, but is, for all intent and purposes, an agent of the court carrying out an official court-ordered function. We hold that the court may invoke its inherent power to maintain the integrity of the judicial system and its processes by invalidating a court-ordered mediation settlement agreement obtained through violation and abuse of the judicially-prescribed mediation procedures." 793 So.2d at 1099. 

Vitakis video



Ryles v. Palace Hotel, No. C 04-5326 SBA, 2006 WL 3093678 (N.D. Cal. Oct. 27, 2006)  (denying employer's motion to enforce a mediated employment discrimination settlement, where totality of the evidence established a coercive atmosphere around the execution of the settlement, including specifically that plaintiff was advised by her own attorney that "she would have to pay $10,000 and would lose her home if she did not settle the case" and that she would not get a fair trial because the court is unsympathetic to employment plaintiffs). 

Quote from the Court: "Where Plaintiff was misled about whether she would be given a fair hearing, and threatened with the loss of her home and other serious financial consequences, this Court cannot conclude that the atmosphere was noncoercive. Defendant's frustration is understand- able, given that a good deal of effort went into reaching this settlement. However, the Court is obligated to examine the circumstances surrounding execution of this [Title VII] agreement more closely than it would an ordinary contract." 

   Ryles v. Palace Hotel video



McDermott v. City of North Olmsted, Ohio, 178 Fed.Appx. 515 (6th Cir. April 27, 2006)  (affirming enforcement of mediated settlement of ADEA claims, concluding that plaintiff employee had reasonable period of time to consider the settlement even though he was forced to sign at the mediation session itself, by virtue of the parties' prior six-weeks of negotiations, involving three revised versions of the written agreement (the last of which had been first presented to plaintiff for consideration 12 days before mediation). 

McDermott video



Lee v. Lee, 158 S.W.3d 612 (Tex. Ct. App. 2005) (concluding that divorce settlement negotiated directly by the parties could not be considered an irrevocable mediated settlement because the parties reached agreement without the assistance of a mediator). 

Lee video



Ledbetter v. Ledbetter, 163 S.W.3d 681 (Tenn. 2005) (refusing to enforce divorce settlement orally dictated by mediator and affirmed by parties and their counsel at mediation, which was later repudiated by one of the parties and never reduced to writing and presented to the court for approval). 

Ledbetter video



Kakani v. Oracle Corp., No. C 06-06493 WHA, 2007 WL 1793774 (N.D. Cal., June 19, 2007)  (denying joint motion to preliminarily approve proposed class action settlement and specifically rejecting assertion that involvement of a mediator helps prove lack of collusion). 

Quote from the Court: "It is also no answer to say that a private mediator helped frame the proposal. Such a mediator is paid to help the immediate parties reach a deal. Mediators do not adjudicate the merits. They are masters in the art of what is negotiable. It matters little to the mediator whether a deal is collusive as long as a deal is reached. Such a mediator has no fiduciary duty to anyone, much less those not at the table. Plaintiffs' counsel has the fiduciary duty. It cannot be delegated to a private mediator." 

   Kakani Video



In re Terrence, 833 N.E.2d 206 (Ohio Ct. App. 2005) (reversing termination of mother's parental rights based on mediated settlement conducted by telephone during mother's incarceration, where record failed to show clear consent and waiver of rights). 

Quote from the Court: "Mediating with the government, which has far more resources than an individual, must be carefully scrutinized, as the parties come with unequal bargaining positions. Here, "[t]he mother had nothing real to gain and everything to lose. [The government agency] had everything to gain and nothing to lose. Mediation is more beneficial to the state, as consent is more efficient than trial." 

In re Terrence video



In re Rains, 428 F.3d 893 (9th Cir. 2005) (concluding that bankruptcy court did not clearly err in finding a debtor mentally competent to enter into a mediated settlement, where witnesses to the day-long mediation testified that the debtor "participated actively and appeared to have full understanding of what was transpiring and of the terms of the settlement", notwithstanding that immediately following the conclusion of mediation the debtor drove himself to the hospital where he was admitted and diagnosed with a cerebral aneurysm and stroke and his treating physician and psychologist opined that a person with his diagnosis would not have had mental capacity to conduct business affairs). 

   In re Rains video



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