Saturday, February 23, 2008

Case Review for 2007

There were several appellate cases in 2007 of interest to mediators and attorneys who represent clients in mediation. The key lesson as an advocate – read release language with care. For mediators, consider what if any role you play in facilitating a conversation about release language as part of a mediated settlement agreement.

In Weaver as Administrator of the Estate of Frankie M. Vamper v Saint Joseph of Pines, Inc., __ N.C. App. __ (2007) the parties (Vamper and Saint Joseph’s) had previously conducted mediation over a debt collection issue. The case reached a settlement with an agreement that Vamper would execute a Release. The Release was general in nature and when the Weaver’s, as Administrator of the Vamper Estate, later brought a negligence and wrongful death claim, the Court held that the Release barred such a claim.

The Court reviewed the earlier Memorandum of Mediated Settlement, an affidavit from the attorney representing Vamper in the debt collection action and the subsequent Release and held that there was no mutual mistake. The Court explained that “[i]t is immaterial that neither the Release nor the Mediation Settlement Agreement specifically mentions the claim at issue in this case or that the possible existence of this claim never arose during the mediation.” Thus, for lawyers representing parties in mediation, this case and Carpenter, noted below, should be a strong wake up call to pay close attention to post mediation release language.

In Capps v NW Sign Industries of North Carolina, Inc., __ N.C. App. __ (2007) the plaintiff sought a commission from his former employer - NW Sign Industries. The parties reached an agreement at mediation and the issue on appeal was whether the mediated settlement agreement contemplated a subsequent more detailed agreement or not. The Court of Appeals held that the mediated settlement agreement was enforceable as the agreement of the parties. In so doing, the Court noted that the parties and their counsel had offered affidavit evidence as to statements made in mediation. There is also mention of a mediator affidavit, but no details as to its content. This is another example of our Courts supporting the notion that agreements reached in mediation are governed by contract law and if the elements are present, then the agreement will be valid and enforceable.

In Sandoval v Pillowtex, __ N.C. App. __ (2007) Judge Tyson, Jackson and Stroud, in an unpublished decision, affirmed a Full Commission decision to enforce the mediated settlement agreement. Here the Court continues to follow the Lemly decision.

At mediation claimant was represented, had a translator present to assist in the discussion and executed a mediated settlement agreement. Claimant later declined to execute a clincher explaining that she thought the mediated settlement agreement was for the payment of $7,500 for three months for a total of $22,500 rather than a one time payment of $7,500. The Full Commission enforced the mediated settlement agreement for $7,500.

On appeal, claimant argued that a “Guatemalan Spanish speaking interpreter” was needed; however, the Court disagreed relying, in part, on a Full Commission finding that claimant’s treating physician “felt that plaintiff was able to communicate effectively in English . . .” The Court also noted that N.C. Gen. Stat. § 97-80(c) (2005) allows that “ ‘the Commission may order parties to participate in mediation . . . ’ ” and that agreements are to be reduced to writing.

Further, in addition to citing Lemly for its adherence to general contract law, the Court also noted that “one who signs a contract is presumed to know its contents, and an illiterate person signing an instrument without request that it be read to him is chargeable with negligence for which the law affords no redress, unless he has been lulled into security or thrown off his guard and deceived.” Citing Ellis v. Mullen, 34 N.C. App. 367, 370, 238 S.E.2d 187, 189 (1977) (citing W. R. Grace & Co. v. Strickland, 188 N.C. 369, 124 S.E. 856 (1924)).

In conclusion, the Court held that the Full Commission findings of fact were supported by competent evidence and that the conclusions of law were “not erroneous as a matter of law.”

Finally, in Carpenter v Morris et al, __ N.C. App. __ (2007) the Court of Appeal’s, in another unpublished decision, held that what is written in the mediated settlement agreement and what is stated in the Report of Mediator does not control over the language in a subsequently signed general release. In Carpenter, an agreement was reached at mediation with one of the defendant’s, but not all, and this was noted in the mediated settlement agreement and the Report of Mediator. However, when the plaintiff later signed a general release with standard language releasing “all other firms, persons, corporations, associations or partnerships” then the defendants who were not a party to the mediated agreement were released. From a practice standpoint, this case is a strong reminder to pay careful attention to the documents both at mediation and post mediation when additional concluding documents are signed.

North Carolina Mediator

North Carolina has a long heritage in the mediation field.

The first community dispute settlement center opened its doors in Chapel Hill in 1978, the first mandatory child custody mediation program was started by Judge Lanning in Charlotte in 1983 and court ordered mediation in Superior Court cases began in Surry County (Judge Jim Long's District) in 1991. The next year, 1992, mediation went state wide in our Superior Courts and now we have over 15 years of court ordered mediation experience. And the trend continues with mediation added to Industrial Commission cases in 1995, Family Financial Mediation went statewide in 2001 and most recently the Clerk of Court added a program in 2007.

There are now over one thousand mediators certified by the North Carolina Dispute Resolution Commission (NC DRC). This "thousand" strong includes attorneys and other dispute resolution professions who adhere to the rules and standards promulgated by the DRC and the North Carolina Supreme Court. We have a tremendous amount of experience and we continue to bring new ideas to the dispute resolution field.

All in all mediation is alive and well in North Carolina.

This blog will be a place for North Carolina mediators to get program updates, learn news about their profession and to share the latest impasse breaking idea.

So, let's get started! Welcome to North Carolina Mediator.