Mediation News by lbMTmSZR

VIEWS: 4 PAGES: 5

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Michael Curry, Attorney_Mediator
Mediation News

October, 2002
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__ Featured Article
__ Mediation Settlement Agreements
__ Continuing Legal Education
__ Dangerous Case re: Confidentiality
__ Featured Non_Legal Site
__ Feedback

Greetings!

This issue of Mediation News highlights Mediation Settlement Agreements. I hope you find it
interesting. This and future issues of Mediation News will be archived at www.mcmediate.com.
Feel free to contact me with any comments or suggestions for future issues! Thank you for your
interest.

Michael

Mediation Settlement Agreements
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When the parties to a mediation settle the case it is always advisable to reduce the agreement to
writing and execute the agreement before adjourning the mediation. It may be late and
everyone may be tired but leaving the mediation without writing up the agreement jeopardizes
the hard work that everyone did that day. The mediator will have a form settlement agreement
that can be used to expedite the process or the parties are free to do their own drafting. The key is
to get the terms spelled out and the parties committed to those terms.

A written agreement is enforceable "in the same manner as any other written contract." CPRC
Sec.154.071. This section also permits a court to "incorporate the terms of the agreement in the
court's final decree..." If one party revokes its consent, the court cannot enter an agreed judgment
on the settlement agreement but the agreement remains enforceable nonetheless. Compania
Financiara Libano, S.A. v. Simmons, 53 S.W.3rd (Tex. 2001). The aggrieved party may
enforce the agreement by pursuing a breach of contract claim in the underlying action or in a
separate suit. Mantas v. Fifth Court of Appeals, 925 S.W.2d 656 (Tex. 1996). The party seeking
to enforce the agreement is not entitled to an automatic judgment on the agreement but rather
must
establish a breach of the agreement through the same rules of pleading and proof as any other
breach of contract claim. Id.; Cadle Co. v. Castle, 913 S.W.2d 627 (Tex. App. _ Dallas 1995,
writ denied). Although not explicitly required by the terms of CPRC Sec. 154.071, the Court
in Mantas strongly suggests that to be enforceable the agreement must be filed with the court
as dictated by TRCP 11. Accordingly, if an action for breach of contract becomes necessary,
the settlement agreement should be filed before its enforcement is sought. See Padilla v.
LaFrance, 907 S.W.2d 454 (Tex. 1995).

To create a binding mediated settlement agreement in a family law suit affecting the parent_child
relationship, the agreement must contain the specific provisions outlined in TEX. FAM. CODE
Sec. 153.071 (c).

For a Mediation Settlement Agreement Form go to the link below. If you do not have MS Word,
you may need to choose the "save" option and save the form to a disc or the hard drive so your
computer can convert it to a readable format.

http://www.mcmediate.com/pages/649193/index.htm

Continuing Legal Education
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CLE Online offers a seminar entitled "Effective Negotiation and Mediation Advocacy" which
may
interest you. I serve as the instructor.

This seminar is accredited for 3.0 hours of participatory CLE credit by the MCLE Committees of
the State Bar of Texas and the State Bar of California. (These are not self_study credits, but
rather 'participatory' credits as you would receive for attending a traditional, live CLE seminar.)

This seminar is also accredited for 3.0 hours of CLE credit by the Texas Board of Legal
Specialization for certification and recertification continuing legal education requirements for
attorneys and legal assistants in the speciality fields of: Civil Appellate Law (3.0), Civil Trial
Law (3.0), Personal Injury Trial Law (3.0),Criminal Law (3.0), and Family Law (3.0).

If you have not tried it, I think you will find online continuing legal education convenient and
affordable. When you get to the CLE Online site, click on Seminars.

http://cleonline.com

Dangerous Case re: Confidentiality
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A recent case by the Texarkana Court of Appeals constitues a dangerous precedent on the issue
of mediation confidentiality. The case is In re Learjet, Inc., 59 S.W.3rd 842 (Tex. App. __
Texarkana, 2001, no writ).

This was a product defect case involving an airplane. The manufacturer prepared a videotape
presentation for use at mediation. The presentation consisted of questions posed by the
manufacturer's attorney to currrent and former employees about the actions taken
in designing and building the aircraft and the conditions in which the aircraft was stored after
delivery. After the mediation failed, the buyer sought and the court ordered production of the
tape played at mediation and unedited core videotapes. The manufacturer sought the protection
of a writ of mandamus from the court of appeals.

The Texarkana Court refused to issue the writ and held that the trial court did not abuse it's
discretion in ordering the production. The Court held that the tapes
were not protected by the attorney client privilege. Although acknowledging the provisions of
the TCPRC Sec. 154.073(a) which unambiguously indicate that communications made by a
mediation participant are confidential and not subject to disclosure, the Court held that the tapes
were discoverable under the following language from Sec. 154.073(c):

"An oral communication or written material used in or made a part of an alternative dispute
resolution procedure is admissible or discoverable if it is admissible or discoverable independent
of the procedure."

It is submitted that the Court completely misread and/or misunderstood the statute. The quoted
provision pertains to material discoverable "independent" of the procedure. The tapes in question
did not exist independent of the procedure. This provision was "intended to prevent a participant
from immunizing otherwise available evidence simply by presenting it during an ADR
proceeding." Rau, Sherman & Shannon's Texas ADR & Arbitration: Statutes and Commentary,
49(West 2000). In other words, discoverable information is not made undiscoverable simply by
presenting it in mediation. It was undisputed that the tapes were prepared for mediation. They
were not properly discoverable.

Recently, the Association of Attorney_Mediators, appearing as amicus curaie, joined in
persuading a trial court in Dallas not to follow In Re Learjet, Inc. Should you face that issue,
please let me know or contact AAM directly. In the meantime, if you are making a written or
videotaped presentation at mediation, have all parties agree in writing before the mediation/ or
presentation, that materials prepared for mediation are not discoverable.

Featured Non_Legal Site
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Someone once quipped that the North American land mass had been compressed by the weight
of all of the National Geographic Magazines stored in bookshelves, garages, closets and attics:
without these magazines the continent would be an extra two inches above sea level. Well, now
there is National Geographic "light" better known as the National Geographic website. It
has a surprising amount of interesting information. You can email the "picture of the day" with
a message to a friend. And, of course, it is a great resource for students. Check it out!

http://www.nationalgeographic.com/

Feedback
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I am committed to providing the best service possible. Accordingly, I welcome any comments,
suggestions and, yes, even criticisms about any and every aspect of the mediation experience. Do
not hesitate to contact me. You may call me or email me at the contact information set out below.

To schedule a mediation, please contact me to inquire about available dates. If I am in a
mediation, leave a message and I will get back to you as soon as possible, usually the same day. I
will be glad to reserve an open date for you while you check with the other parties. Try to contact
me as far in advance as possible, but never assume that a date within the next two weeks is
impossible, because another mediation may have canceled.

Also, feel free to forward Mediation News to anyone you think might have an interest in
receiving it. They can sign up at my website or send me an e_mail indicating their interest.




Contact Information
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email: mcmediate@msn.com
voice: 512 474_5573
web: http://mcmediate.com
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