Last week, I posted about the new Supreme Court case regarding enforcing settlements reached at mediation. That case made clear that a settlement that is reached at mediation but not reduced to a signed written agreement will not be enforceable. Simple enough right.

*Image Courtesy of PhotoExpress.

But what is a writing.  The Court noted that a short form settlement agreement (term sheet) drafted by one of the attorneys and signed by the parties at the mediation table (as suggested in apublication prepared by the Civil Practice entitled, Mediator’s Tool Box: A Case  Management Guide for Presumptive Roster Mediators 11 (Nov. 2011), available at the court’s website.)

The Court went on to discuss other possible “writings”, as follows:

Although our court rule may be silent about whether a signed agreement is necessary, the Mediation Act and our evidence rules are not. N.J.S.A. 2A:23C-6(a)(1) and N.J.R.E. 519(c)(a)(1) both provide that “an agreement evidenced by a record signed by all parties to the agreement” is an exception to the mediation-communication privilege. (Emphasis added). Because a signed agreement is not privileged, it therefore is admissible to prove and enforce a settlement.

Although neither the Mediation Act nor N.J.R.E. 519 specifies what constitutes an “agreement evidenced by a record” and “signed,” the UMA Drafters’ Comments give insight regarding the intended scope of those words. The UMA Drafters’ Comments  report that those words apply not only to “written and executed agreements,” but also to “those recorded by tape . . . and ascribed to by the parties on the tape.” UMA Drafters’  Comments, supra, at § 6(a)(1), comment 2. For example, “a participant’s notes about an oral agreement would not be a signed agreement.” Ibid. In contrast, a “signed agreement” would include “a handwritten agreement that the parties have signed, an e-mail exchange between the parties in which theyagree to particular provisions, and a tape recording in which they state what constitutes their agreement.” Ibid.  (Emphasis added).

So again, what is the take away from this?  If you think that there is a chance that the other side will walk from the deal, make sure to write down all material terms of the deal before the close of mediation and have the parties sign them noting an intention to be bound.  Or get them on tape, almost like an uncontested hearing, stating all of the material terms as well as their intention to be bound and perhaps most or all of the other questions asked about an agreement at an uncontested hearing.  Do what it takes to confirm the deal or risk losing it once people leave the mediation.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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