Wednesday, March 22, 2006

“Get Involved And Just Enforce It!”

In the Second District Court of Appeal opinion in Raho of Pass-A-Grille, Inc. v. Pass-A-Grille Beach Motel, Inc., 2006 Fla. App. LEXIS 3976 [Fla. 2nd DCA 2006], an agreement was reached in mediation and it was memorialized in a written mediation agreement [Good move!] which was signed by the parties and their legal counsel [Another good move!] as well as by the mediator [Why? What did that add? Was this a good move? Whose agreement is it anyway?]. Thereafter, a consent order adopting the mediation agreement was signed and rendered by the trial court. Subsequently, various disputes arose between the parties concerning performance under the mediation agreement, and both parties filed motions to enforce the agreement.

Rather than enforcing the various provisions of the agreement, after an evidentiary hearing, the trial court concluded that the mediation agreement did not constitute a “real meeting of the minds” of the parties and upon that basis invalidated the agreement in its entirety.

Not so fast held the appellate court. “Although the mediation agreement was ambiguous in some respects, the parties agreed upon the essential terms and intended the mediation agreement to be binding upon them.” It was incumbent upon the trial court to resolve any ambiguities.

What could the mediator have done differently during the agreement drafting phase of the mediation conference? As always, the devil is in the details!

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