About Us

Victoria Pynchon

As the co-founder of She Negotiates Consulting and Training, I offer my services as a keynote speaker, trainer and consultant....

She Mediates

ADR Services, Inc.

She Negotiates

She Negotiates

The 33 cent wage and income gap is unacceptable and unnecessary. So is the cliché glass ceiling. Bottom line, our...

Challenges to Mediated Settlement Agreements: Duress and Undue Influence

 

While Joe Francis sits in jail for misbehaving during a mediation, we take a moment to contemplate mediation's first principles:  voluntariness and self-determination.  

In their exhaustive review of appellate mediation case law Disputing Irony:  A Systematic Look at Litigation about Mediation (Spring 2006) 11 Harv. Negot. L. Rev. 43, James R. Coben and Peter N. Thompson discuss the law to date on duress and undue influence.

As Coben and Thompson stress, 

To make a successful duress defense the proponent must establish that a wrongful threat by the adverse party deprived the proponent of free choice, resulting in an unfair agreement benefiting the adverse party. As with other contractual defenses, the standard is quite difficult to meet in a mediation context. A mediation party was successful in claiming duress in only one of the thirty-six opinions [reported during the prior five year period].

That as many as seven of the thirty-six cases reviewed were directed at alleged mediator coercion is troubling, particularly in light of Magistrate Brazil's opinion in Olam v. Congress Mortgage Co. * which makes pursuing any claim of duress or undue influence seem a foolhardy mission.  As Coben and Thompson note, although the plaintiff in Olam

was sixty-five years old, suffered from high blood pressure, headaches and abdominal pains, and testified that she was in pain, weak and dizzy, and that she was pressured by her lawyer, the defendants and their counsel, the court found that this agreement obtained at 1:00 A.M. after fifteen hours of mediation was not obtained by undue influence. 

Coben and Thompson revisited the issue of duress under the rubric of mediator misconduct, citing ten opinions where a party charged the mediator with exerting undue pressure to obtain agreement.  Most of these charges will look familiar to lawyers, who might ask themselves what they look like to the man or woman on the street:

  • the gist of the complaint in several cases was the mediator's recitation of a list of "horribles" that the parties would suffer if they did not settle and had to experience the dreaded civil trial (called "reality-testing" by the authors)
  • one claim was based upon the alleged coercive statement by the mediator that if the party  "didn't sign the agreement [he] would ruin [the mediator's] record of being always able to settle the case."
  • another claim (this one successful) was based upon the mediator's alleged threat "to tell the judge that she was the cause of the settlement failure, speculat[ion] that the court would rule against her, and [pr]offered opinions about the potential legal costs[, as well as] how refusing to settle would affect her pensions.

We are bound to see more claims of mediator misconduct, duress and coercion.  The problem is clear.  We'll discuss potential solutions in future posts.     

* Note that the District Court's order requiring the mediator to testify would likely not stand up under the current law in California.  See In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56. 

Comments (12)

Read through and enter the discussion by using the form at the end
payday loans - June 22, 2012 9:11 AM

Hi, I do think this is an excellent blog. I stumbledupon it ;) I am
going to return once again since i have bookmarked it.

Money and freedom is the best way to change, may you be rich and continue
to guide other people. payday loans

ppi claims against facebook - July 26, 2012 12:30 PM

After I originally commented I seem to have clicked the -Notify
me when new comments are added- checkbox and from now on every time
a comment is added I get 4 emails with the exact same comment.
Perhaps there is a way you are able to remove me from that service?

Kudos! http://ppi-cliaims.webstarts.com/

Brett - September 13, 2012 8:32 AM

Heya this is somewhat of off topic but I was wanting to know if blogs use WYSIWYG
editors or if you have to manually code with HTML. I'm starting a blog soon but have no coding skills so I wanted to get guidance from someone with experience. Any help would be enormously appreciated!

Wyatt - July 15, 2013 1:31 PM

I'm curious to find out what blog system you happen to be using? I'm experiencing some small security problems with my latest blog and I would like to find
something more safe. Do you have any suggestions?

website - July 24, 2013 8:10 AM

Write more, thats all I have to say. Literally, it seems as though you relied on the video
to make your point. You clearly know what youre talking about, why throw away your intelligence on
just posting videos to your site when you could be giving us something enlightening to read?

http://www.cookitsimply.com/category-0020-0i14.html - July 28, 2013 4:03 AM

Following I noticed the motion picture, I had to look at the dish and above the decades I have hopefully
enhanced on the unique recipe I identified. Then you
can dip them into liquid batter and fry them. Copycat recipes from: Applebee's, Kentucky Fried Chicken, Olive Garden, Chili's, Outback Steakhouse, P.

mickyfwefw43.bravesites.com - September 10, 2013 2:15 PM

Awesome! Its truly amazing post, I have got much clear idea concerning from this
paragraph.

http://bettercommunity27.skyrock.com/3187183003-Check-Out-In-Vietnam-With-This-Picture.html - October 1, 2013 2:27 AM

I like the helpful info you supply for your articles.
I'll bookmark your weblog and take a look at once more
here frequently. I am rather certain I'll be informed many new stuff
right here! Best of luck for the following!

travel gear - October 10, 2013 11:54 AM

Greetings! Very useful advice in this particular article!

It is the little changes that will make the greatest changes.
Thanks a lot for sharing!

seo services houston tx - February 17, 2014 11:04 AM

Heya this is kinda of off topic but I was wanting to know if blogs use
WYSIWYG editors or if you have to manually
code with HTML. I'm starting a blog soon but have no coding experience so I
wanted to get guidance from someone with experience.

Any help would be enormously appreciated!

how to make french toast - February 22, 2014 7:59 PM

Hi, i think that i saw you visited my weblog so i came to “return the favor”.I am
trying to find things to improve my site!I suppose
its ok to use some of your ideas!!

how to make french toast - February 22, 2014 8:00 PM

Hi, i think that i saw you visited my weblog so i came to “return the favor”.I am
trying to find things to improve my site!I suppose
its ok to use some of your ideas!!

Post a comment

Fill out this form to add a comment to the discussion
I'd like to leave a comment. is
,
is
,
is
is
  • 4media dvd ripper standard 5
  • adobe audition cs5.5 mac
  • adobe creative suite 4 web premium mac
  • autodesk building design suite ultimate 2012
  • techsmith camtasia studio 7
  • adobe flash builder 4.7 premium
  • adobe photoshop cs5 mac
  • corel wordperfect office x4 standard
  • adobe creative suite 6 production premium student and teacher edition
  • visual studio 2010 premium
  • autodesk maya 2013
  • nuance pdf converter professional 5
  • adobe cs6 production premium student and teacher edition mac
  • autodesk autocad electrical 2011
  • autodesk autocad map 3d 2009
  • pitney bowes mapinfo professional 11.5
  • adobe cs6 design standard student and teacher edition mac
  • infinite skills - learning bootstrap 2 mac
  • daz bryce 5.5
  • thegrideon access password professional 2.0
  • adobe flash professional cs5.5
  • autodesk navisworks manage 2009
  • microangelo toolset 6
  • autodesk alias design 2012 mac
  • parallels desktop 9 mac
  • futuremark 3dmark 05 pro
  • filemaker pro 11 advanced
  • adobe dreamweaver cc mac
  • infinite skills - advanced html5 training
  • autodesk autocad 2011 mac
  • excel 2010 all-in-one for dummies
  • adobe photoshop cs3 photographers guide
  • quarkxpress 10
  • camtasia studio 8
  • apple mac os x 10.8 mountain lion