Sunday, June 15, 2008

“Would Have, But . . .” “Should Have, But . . .” “Could Have, But . . .” – “Didn’t!”

In Leff and Physicians Financial Consultants Corporation v. Ecker, M.D., 972 So.2d 965 [Fla. 3rd DCA 2007], the plaintiff went into the mediation conference without a clear picture of what the insurance policy limits were. Notwithstanding this limited knowledge, plaintiff chose to go ahead with the mediation and entered into an agreement at the end of mediation.

The Defendants filed a motion to enforce the mediated settlement agreement [Guess why! Good guess!]. The Plaintiff argued that a “mutual mistake” allowed him to avoid the parties’ mediated settlement agreement.

Not so fast according to the Third District Court of Appeal:

A party to an agreement bears the risk of mistake when he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient.

The doctrine of mutual mistake was not created to relieve litigants of agreements entered into improvidently. The all-out efforts plaintiff later engaged in to go behind the policy and ascertain, without question, what policies applied and what policy limits were, could have been performed before the mediation. [Emphasis added.]

The appellate court reversed the trial judge and remanded the case for the entry of an order enforcing the settlement agreement.

By the way, what about confidentiality? Although not mentioned in the opinion, Florida’s Mediation Confidentiality and Privilege Act [F.S. 44.401 – 44.406] includes certain permitted, although limited, disclosures. For example, F.S. 44.405(4)(a)(5) provides there is no confidentiality or privilege for any mediation communication:

Offered for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation.

But, you knew that – right?!? Anyway, it will be time well spent taking another look at the statute.

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