ADR Case Updates
Enforcement of Settlement Agreements Reached at Mediation, 09/19/04
I thought you would find of interest the attached and recent Court of Appeal decision in Fair v. Bakhtiari (First Appellate District, Division Two, No. A100240, Filed August 31, 2004), dealing with enforcement of a settlement agreement reached at the conclusion of mediation. The parties included a provision that disputes regarding the settlement were subject to JAMS arbitration rules, but did not include a clause stating the agreement was admissible to prove the settlement. A subsequent dispute arose. Plaintiff filed a motion to compel arbitration. The trial court denied the motion after refusing to admit the settlement into evidence. In reversing and remanding, the Appellate Court held that reference to the JAMS arbitration rules evidenced the parties' intent to be bound, thus meeting the exception to the confidentiality requirements of mediation. Of course, the solution is to include in any settlement agreement reached at the conclusion of mediation words to the effect that the agreement is admissible for the limited purpose of enforcing the agreement. Consider using the following clause:
Notwithstanding Evidence Code §§ 1119 and 1123, this Agreement will be admissible into evidence for the limited purpose of enforcing the terms of the settlement under Code of Civil Procedure § 664.6 or otherwise.
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