Alterative Dispute Resolution (ADR) has become a way of life for CAWS members. With the introduction of the Mediation program in 1991, CAWS had a non-adjudicatory mechanism as an alternative to Arbitration. At the time we had no idea how progressive or successful this approach to resolving disputes between agents and manufacturers would be.
Meditation, a non-adjudicatory ADR mechanism, involves the resolution of the dispute by the parties through negotiation. Currently the vast majority of disputes are settled outside the courtroom by:
- Formal court sponsored settlement efforts
- Informal efforts of attorneys and their clients
The popularity of mediation continues due to the format. The mediator’s role is to develop creative and responsive settlement packages. The mediator, often an expert in the subject matter, is critical in moderating the flow of discussion and in keeping the process moving. Refusal to negotiate is the only obstacle to successful mediation. It is not surprising that when we allow the parties to participate in the process rather than using a neutral to adjudicate, the parties feel empowered. Consequently there is more often satisfaction at the settlement than if a neutral were to decide the dispute.
“After the mediation”
Courts have the power to summarily enforce settlement agreements. To be judicially enforceable a settlement agreement must be sufficiently specific as to be capable of implementation. Courts will not attempt to enforce a settlement agreement that is too vague or ambiguous. A settlement agreement is an enforceable contract between the parties if it sets forth the essential terms of the settlement. The parties involved usually reach agreement orally followed by a written agreement setting forth the obligations of each party in the future. If the process is not completed, the court becomes re-involved when settlement goes awry. If the court concludes that the parties have failed to agree on some element of settlement, it will not enforce an agreement and the dispute will be re-activated and run its course through the litigation process. The documentation does not have to be complex or extensive just factual brief and timely.
In conclusion, like any other promise based obligations a settlement agreement is governed by contract law principles and will be enforced accordingly by the courts.