It’s 10:30 p.m., and the parties have finally agreed to a settlement. Having spent more than twelve hours in mediation, everyone is exhausted. Not wanting to take even more time to prepare a handwritten settlement agreement, the decision is made to quit for the evening and document the settlement later. Everyone shakes hands and departs. The next day, one of the parties has second thoughts and refuses to proceed with the proposed settlement.
The above describes a far more common scenario than many might expect, but one which can be avoided by following a relatively simple rule: always carry a “thumb” drive, also known as a “flash” drive, on which you have downloaded the template of your preferred settlement agreement form. Alternatively, bring a pre-printed template with you, and fill in the blanks by hand once the parties have agreed upon all of the terms of the settlement.
For those who may not be familiar with the expression, a “thumb” drive is a portable memory device about the size of a thumb – hence the nickname – which can be inserted into the USB port on any computer and from which one can download any data stored on the device. Given that most mediators have computers and printers readily accessible, it is relatively easy and quick to download an acceptable template, make the necessary revisions, print the settlement agreement, and have everyone sign off before departing.
Bear in mind, however, that a written settlement agreement prepared in the course of, or pursuant to, a mediation is not admissible in court in the event of a later dispute unless it expressly states that it is “admissible or subject to disclosure” or “enforceable or binding,” or other words to that effect. Evidence Code Section 1123.
By remembering to bring your “thumb” drive to mediation, and by including the language set forth above, you might just avoid an unexpected “thumbs down” the next morning.
As always, it would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.
Best regards,
Floyd J. Siegal
fjs@fjsmediation.com