Enforcing Mediated Settlement Agreements: Contract Law Collides with Confidentiality
Ellen E. Deason
Ohio State University (OSU) - Michael E. Moritz College of Law and Mershon Center for International Security
University of California at Davis Law Review, Vol. 35, Fall 2001
This article explores competing policies between accurately enforcing mediated settlement agreements and maintaining the confidentiality of the mediation process. Attempts to enforce or resist enforcement of settlement agreements are an increasingly common source of challenges to mediation confidentiality in two contexts: claims of oral settlement agreements and defenses to agreements such as fraud, duress, or lack of authority. In both these settings communications and events that took place during mediation are often relevant to evaluting the validity of settlements, yet this evidence would undermine the promise of confidentiality associated with the mediation process. State legislatures and courts have taken a myriad of approaches to this inherent conflict in deciding if mediated agreements are enforceable. Professor Deason considers the policy choices in light of the potential harms from disclosure to the process of mediation, the values expressed in traditional contract rules, and the central role of party autonomy in mediation. In her view, the importance of mediation confidentiality justifies requiring a signed writing or some other form of record to show the existence of a mediated settlement. The draft Uniform Mediation Act also takes this approach. For contract defenses, however, she supports a case-by-case balancing, despite the uncertainty it introduces. The article also proposes ways for courts to minimize the need to consider mediation disclosures and suggests proceduress to maintain confidentiality during the decision process when it is necessary.
Number of Pages in PDF File: 89Accepted Paper Series
Date posted: May 23, 2001
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