Most successful mediations result in a written “Mediated Settlement Agreement” (MSA). Advocates usually agree that it is best to reduce the settlement agreement to writing, even if the MSA is merely an outline of the essential terms of the settlement.
What if the agreement breaks down over the terms of the more elaborate settlement documents that everyone assumed would not be a problem”? Fortunately the Houston (14th) Court of Appeals, in a recent decision, helps us with this perplexing issue! In Border Gateway, LLC v. Gomez the parties obligated themselves, in an MSA, to “enter into a formal settlement agreement within ten business days”. In a trial over an alleged breach of the MSA, it was argued that the failure of this condition precedent rendered the “agreement” non-binding on the parties. Citing established precedent, as well as the Restatement (2nd) of Contracts, the Court opined, “the fact that the parties intend for an informal agreement to be reduced to a more formal writing will not necessarily prevent present, binding obligations from arising”. The party challenging the MSA could not establish that the MSA manifested an intent to not be bound.
Practice tip? An expression in an MSA of “the parties intend to be bound by this agreement, notwithstanding the fact that more formal settlement documents are contemplated”, should go a long way in bolstering the enforceability of the agreement. Conversely, if you have any reservations about the “more formal settlement documents” to follow, the MSA should clearly state that the MSA is non-binding (in which circumstance why even sign the MSA?).
Greetings One and All, and Happy New Year! Be safe, be prosperous, be obedient, stay focused, be encouraging of others, be self-aware but not too self-aware, be thoughtful, be patient, and keep your sense of humor. If this holiday season has been a little gloomy, maybe think of Tony Romo, or Michelle Bachman, or the fact that we have the delicious and undeserved (and free!) entertainment of Republican caucus and primary nights just around the corner. And remember, maybe the Cowboys will win the Super Bowl. Maybe Ron Paul will be our next President. And maybe I’m the Easter Bunny. Have a happy one!
For decades the slogan of the New York Times has been, “All The News That’s Fit to Print”. Two days ago in my hometown paper, there were headlines that just didn’t seem to fit.
Horrible News. “Scandal to End Paterno Career”. How unbelievably sad. What a horrible, horrible story. Every aspect of it.
Good news or bad news, depending on one’s perspective. “Ohio Repeals Limits on Union Bargaining: Public workers score big win against GOP; Mississippi defeats abortion ban”. Just when you thought right wing extremists in this country pretty much had a lock on everything, in Mississippi voters rejected an anti-abortion ballot initiative. In Mississippi. And Ohio voters overturned a new law that had weakened pubic employee unions. Amazing.
And FABULOUS NEWS. “Earth Safe After Big Asteroid Hurtles By”. We just missed getting hit by an asteroid THE SIZE OF AN AIRCRAFT CARRIER! Did everybody know about this threat but me? Whew!
So if you are gloomy about the economy, or the Penn State scandal, or the Republican presidential debates, just remember: the asteroid missed us!
When I said the other day that “today is the day”, what I meant, obviously, was not that day, but this day. Because today is the day I welcome you to my new website, my social network sites, my new mediation fee option, and my never-wavering interest in being of assistance to you and your clients should the need for the services of a professional neutral arise.
Thank you for your interest, and should you ever have any questions about mediation, arbitration, or the world of hybrid dispute resolution options, I will look forward to hearing from you.
Don’t look now, but we’ve started a whole new website!