Olam

AMENDED ORDER AND OPINION RE DEFENDANTS’ MOTION TO ENFORCE SETTLEMENT

INTRODUCTION — MAJOR ISSUES PRESENTED

The court addresses in this opinion several difficult issues about the relationship between a court-sponsored voluntary mediation and subsequent proceedings whose purpose is to determine whether the parties entered an enforceable agreement at the close of the mediation session.

As we explain below, the parties participated in a lengthy mediation that was hosted by this court’s ADR Program Counsel — an employee of the court who is both a lawyer and an ADR professional. At the end of the mediation (after midnight), the parties signed a “Memorandum of Understanding” (MOU) that states that it is “intended as a binding document itself. ...” Contending that the consent she apparently gave was not legally valid, plaintiff has taken the position that the MOU is not enforceable. She has not complied with its terms. Defendants have filed a motion to enforce the MOU as a binding contract.

One of the principal issues with which the court wrestles, below, is whether evidence about what occurred during the mediation proceedings, including testimony from the mediator, may be used to…