Many settlements are reached at the end of an exhausting day or days of mediation. Consequently, rather than wrapping up everything at that point, parties may settle orally, with the understanding that either they or the mediator will prepare a document that will memorialize their agreement.

Often, however, upon reconsideration, a client may become unwilling to honor the prior understanding. The adversary is, of course, upset. After all, the settlement was reached not only between the parties, but with the assistance of and in the presence of a mediator. In fact, the mediator, often upon the parties’ request, prepares and distributes for signature a proposed settlement term-sheet or even a full-blown settlement agreement that sets forth the agreement. The problem, however, is that the recalcitrant client will contend that there is no proof of the actual mediated settlement, and that the document circulated by the mediator is an inadmissible “mediation communication” if all parties have not signed the document.

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