Late Nights and Cancellation Rights: Bolstering Enforceability of Mediated Settlements With a Cooling Off Period

• Jurisdiction: California,United States
• Citation: Vol. 38 No. 1
• Publication year: 2016
• Author: Hon. Thomas Trent Lewis, Elizabeth Potter Scully, and Forrest S. Mosten
• topic: Contracts,Family Law,Civil Procedure

Late Nights and Cancellation Rights: Bolstering Enforceability of Mediated Settlements with a Cooling Off Period

Hon. Thomas Trent Lewis, Elizabeth Potter Scully, and Forrest S. Mosten¹

Judge Thomas Trent Lewis is the Immediate Past President of the California Chapter of AFCC. He was Assistant Supervising Judge of the Family Law Department of Los Angeles Superior Court from 2011 and currently handles long cause family law trials. In 2015, Judge Lewis was presented with the Spencer Brandeis Award, the Los Angeles County Bar's highest honor.

Elizabeth Potter Scully, CFLS is a founding partner in the Los Angeles family law firm Jacobson Scully Shebby LLP. She teaches Mediation and Negotiation at UCLA School of Law.

Forrest S. Mosten, CFLS has been in private mediation practice since 1979. He also serves as a non-litigation family lawyer who offers limited scope representation for clients in mediation and self- represented litigants. He is an Adjunct Professor of Law at UCLA School of Law where he teaches Mediation, Family Law Practice: A Non-Litigation Approach, and Lawyer as Peacemaker.

We've all been there - hunched bleary-eyed over a laptop at a conference room table with opposing counsel, a mediator, a couple of exhausted and emotionally drained clients, perhaps even a bedraggled forensic accountant or two, the clock ticking towards 9:00 pm after a full day of last-ditch negotiation to reach a global settlement. Ideally, every family law case could be mediated in a series of relaxed, sequential, two-to-four-hour sessions with plenty of time in between for reflection and consultation. In our family law "real" world, as we know, things routinely unfold in a less leisurely and more chaotic way. When we find ourselves in this tough situation, what can we do to capture the settlement opportunity by getting an agreement or term sheet signed by recalcitrant parties, while at the same time (1) ensuring that any agreement reached is in fact the result of informed consent; and (2) protecting that agreement against subsequent set-aside claims?

It can be challenging to draft something coherent, complete, and mutually acceptable after a long, emotional day. Even if the attorneys are satisfied with the language, that does not mean the clients have had adequate time to digest and truly understand the meaning and consequence of the settlement terms. The clients may in fact be too emotionally flooded or tired to process much of anything. But they may also be desperate for closure. Many attorneys flatly refuse to have clients sign...