In Herbison v. Schwaner, No. A-1-CA-34997, 2019 WL 1228072 (N.M. Ct. App. Feb. 4, 2019), the parties signed a handwritten settlement memorandum prepared by the mediator after the mediation agreeing to certain terms. The parties then began negotiating a more formal settlement agreement. At the outset of the process, the mediator reminded them that he was available to resolve any disputes over language. Subsequently, negotiations broke down over the form of release and the remedy for breach of the confidentiality provision. The mediator proposed language to resolve the dispute, but also opined that even if the parties did not reach agreement on this issue, they had nevertheless created an enforceable contract when they executed the handwritten settlement after the mediation. The defendant eventually moved to enforce the handwritten settlement while the plaintiff opposed enforcement on the ground that the handwritten settlement was incomplete.
The trial court granted the motion to enforce, finding that the handwritten settlement was binding and enforceable, and that in connection with negotiation of a more formal settlement agreement, both parties had agreed that language disputes would be referred to the mediator. The New Mexico Court of Appeals affirmed, agreeing that the question of what should happen in the event a party breached the confidentiality provision was a secondary matter that did not affect the formation of the settlement agreement, and that the mediator had resolved the issue by proposing appropriate language.
Christensen v. Cox
The second case is Christensen v. Cox, No. SUCV20171635BLS1, 2019 WL 2234598 (Mass. Super. Apr. 25, 2019). In Christensen, after fourteen hours of mediation, the parties reached an agreement embodied in a document titled “Binding Mediation Agreement” that purported to set out the “material terms” of the settlement and to “fully and finally resolve” the underlying dispute. This document also provided that “should the parties have a dispute in memorializing these material terms in a settlement agreement, the parties agree to raise the issue to [the mediator] for resolution.”
After the parties failed to memorialize the settlement, one party moved to enforce the Binding Mediation Agreement. The Court held that, despite being conditional upon execution of further documents, the Binding Mediation Agreement was enforceable because it included all material terms. It further held that the provision agreeing to refer any disputes over memorialization of the settlement to the mediator constituted an enforceable contractual obligation.