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...

Cal Supremes: Expressly Provide that Mediated Settlement "Term Sheet" is Enforceable

 The California Supreme Court held in Fair v. Bahktiari last week that parties to a mediated settlement agreement must include an express provision that they intend to be bound by any written term sheet memorializing their settlement.

If you do not, the trial court will not enforce your settlement agreement even when, as here, you've prepared a relatively detailed deal memo including an arbitration clause.

As we've recommended before, you should prepare your term sheets in advance (or better yet, bring a laptop with your form settlement agreement on it --  many of my clients do, along with a portable printer or a jump drive to plug into a local PC). 

Being prepared to draw up the settlement agreement at the mediation is not only "a stitch in time" but shows admirable optimism.  Optimism that does, believe it or not, have a real and substantial effect on the settlement proceedings.   

For tips on ways to insure that your mediated settlement agreements are enforceable (or to resist the enforcement of an "agreement" that you don't concede was actually reached) see Deborah Rothman's and my Daily Journal article on the topic here.

Details, Details, Details 

The Court's holding and rationale are pretty straight forward.    

In order to preserve the confidentiality required to protect the mediation process and provide clear drafting guidelines, we hold that . . . . a writing must directly express the parties’ agreement to be bound by the document they sign. (emphasis added).

In strictly construing section 1123(b) permitting the enforcement of written agreements reached during a mediation, the Supreme Court cautioned that

[d]urable settlements are more likely to result if the statute is applied to require language directly reflecting the parties’ awareness that they are executing an “enforceable or binding” agreement.

Commenting upon Plaintiff's characterization of defendants' post-mediation conduct as an aid to interpretation, the Supreme Court cautioned that the Legislature did not intend the courts to "examine extrinsic evidence to resolve competing claims over the parties’ intent."

Rather, held the Court, the detailed requirements of section 1123

are designed to produce documents that clearly reflect the parties’ agreement that the settlement terms are 'enforceable or binding.'” Thus, concludes the Court, "to satisfy section 1123(b), a settlement agreement must include a statement that it is “enforceable” or “binding,” or a declaration in other terms with the same meaning. The statute leaves room for various formulations. However, arbitration clauses, forum selection clauses, choice of law provisions, terms contemplating remedies for breach, and similar commonly employed enforcement provisions typically negotiated in settlement discussions do not qualify an agreement for admission under section 1123(b).

Comments (1)

Read through and enter the discussion by using the form at the end
Whatever-ishere - November 21, 2007 10:17 AM

thanks for the GREAT post! Very useful...

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