BY Donald J. Spero, Esq.
Since nearly every state and federal court case in Florida winds up in mediation, it is well for the practitioner to be aware of the pitfalls in the mediation process. A body of case law that points out these hazards has been developing. An overview of that case law will alert the practitioner to what is expected of the participants in mediation, what should be avoided and how to preserve the benefits of the mediation process.
II. CONFIDENTIALITY IN THE MEDIATION PROCESS
No case better points out the damage to a party that can result from failure to adhere to the confidentiality rule than Paranzino v. Barnett Bank of South Florida, 690 So. 2d 725 (Fla. 4th DCA 1997). Ms. Paranzino sued Barnett Bank claiming that she failed to receive credit for $100,000.00 with which she had purchase a certificate of deposit. The parties participated in a court ordered mediation for which they signed a confidentiality agreement. The agreement bound them not to disclose the mediation discussions without written approval of those who signed the agreement. The agreement further provided that the mediation was to be governed by Chapter 44 of the Florida Statutes and by rule 1700 Fla. R. Civ. P., et seq. Shortly after the mediation, the bank made a settlement offer that was rejected by Ms. Paranzino. Subsequently Ms. Paranzino and her daughter, who was not a party to the action, disclosed the offer to the Miami Herald. The newspaper ran an article in which it discussed the offer. It also attributed statements about the case and the mediation to Ms. Paranzino’s counsel.
Barnett Bank moved to strike Ms. Paranzino’s pleadings. The order granting the bank’s motion was affirmed by the appellate court. In its opinion the court cited Section 44.102(3) Florida Statutes (1993) which provides that a party to a court ordered mediation "...has a privilege to refuse to disclose and to prevent any person present at the proceeding from disclosing communications made during such proceeding." The court also reasoned that Rules 1730(a) and (b) Fla. R. Civ. P. mandate confidentiality. Rule 1730(a) requires the mediator to report to the court without comment when the parties fail to reach an agreement. Rule 1730(b) requires settlement agreements to "...reduced to writing and signed by the parties and their counsel" and "to be filed where required by law or with the parties consent." The court observed at 690 So. 2d 728 that "...the very basis of court ordered mediation is that parties can rely upon the confidentiality of all oral or written statements."
The court rejected Ms. Paranzino’s argument that the offer she disclosed was made after the mediation resulted in an impasse because the offer was made within a ten day period that the mediation provided for the parties to notify the mediator of the status of the mediation.
Another lesson in the importance of maintaining confidentiality is found in Hudson v. Hudson, 600 So. 2d 7 (Fla. 1st DCA 1992), a divorce action in which the parties reached an oral agreement at mediation. The husband later had second thoughts and the oral agreement was not reduced to writing. The husband and his counsel failed to show up at the trial. At the trial the wife’s testimony included a discussion of the mediation proceeding and the oral agreement. Later the husband moved to vacate the decree because of the disclosure of matters that took place during the mediation. The trial court’s refusal to vacate the decree was partially reversed by the appellate court. The court upheld the dissolution of marriage, but it vacated the balance of the judgement and remanded the case for a retrial of the other issues. The court found that the testimony about what transpired at the mediation violated the letter and spirit of Section 44.102(3) Florida Statutes and that by this evidence "...the well was poisoned." 600 So. 2d 9
Documents or other materials produced during mediation are not admissible as evidence. In Chabad House-Lubavitch of Palm Beach County v. Banks, 602 So. 2d 670 (Fla. 4th DCA 1992) the court found that the trial court had committed error in admitting a site plan of the property that was the subject of the litigation over the objection of the appellant as it was a direct product of the mediation.
Unless the parties waive confidentiality a mediator can not be compelled to testify about what took place at a mediation conference. A mediator’s motion to quash a subpoena that attempted to require him to testify was granted in Royal Caribbean v. Modesto, 614 So. 2d 517 (Fla. 3d DCA 1992). This was a Jones Act case in which the defendant sought to enforce an oral settlement agreement that was purportedly reached during a court ordered mediation. The Third District Court of Appeals focused on the language of Fla. R. Civ. P. 1730(b) requiring a mediator to report to the court the failure of the parties to reach an agreement without comment or recommendation and requiring settlement agreements to be reduced to writing.
III. CONFIDENTIALITY MAY FALL BY THE WAYSIDE WHEN ONE PARTY LETS THE CAT OUT OF THE BAG.
Section 44.102(b) of the Florida Statutes grants to the parties to a court ordered mediation "...a privilege to refuse to disclose, and to prevent any person present at the proceeding from disclosing communications made during such proceeding." (emphasis supplied) Since confidentiality is a privilege it can be waived by an intended beneficiary of that privilege.
A waiver of the privilege of confidentiality was found in McKinlay v. McKinlay, 648 So. 2d 806 (Fla. 1st DCA 1995), a divorce action in which the husband moved to enforce a signed mediation agreement over the wife’s objection. The wife claimed in a letter to the trial judge that she had been unduly pressured into signing by her husband’s counsel, her own counsel and the mediator. At the hearing on the motion to enforce the settlement she testified about the pressure she endured at the mediation. The husband sought to have the mediator testify. The trial court sustained the wife’s objection to the mediator’s testimony on the basis that what transpired at the mediation was confidential. The court reversed. It found at 648 So. 2d 810 "...that Wife waived her statutory privilege and that, as a result of the waiver, it was error and a breach of fair play to deny Husband the opportunity to present rebuttal testimony and evidence." The court distinguished the case from Hudson v. Hudson, supra, primarily because the wife had waived he privilege by writing to the trial judge and by her testimony. The court also found a distinction in that unlike in Hudson, the present case involved a signed mediation agreement.
The First District Court of Appeals also found a waiver of the confidentiality privilege in Taylor v. Taylor, 650 So. 2d 662 (Fla. 1st DCA 1995), a divorce case in which it upheld the trial court’s admission of testimony about the mediation proceeding. The wife sought relief from a mediated settlement agreement she signed before learning of an unanticipated illness of her minor daughter. The court held at 650 So. 2d.806 that:
A party seeking relief from a mediated settlement agreement on the basis of his or her intent or thoughts at the time the agreement was entered into may not assert that matters discussed during the negotiations of that agreement are privileged. McKinlay v. McKinlay, 648 So. 2d 806 (Fla. 1st DCA 1995)
IV. WHO SHOULD BE PRESENT AT THE MEDIATION CONFERENCE?
The presence of a party or the party’s representative with full authority to settle and the party’s counsel, if the party is represented, is required by Rules 1700(b)(1) and (2) Fla. R. Civ. P. If a party is insured, a representative of the carrier, other than the carrier’s counsel must be present with authority to settle up to the policy limits or the amount of the last demand, whichever is less. Failure of the required individuals to attend may result in sanctions.
In Physicians Protective Trust v. Overman, 636 So. 2d 827 (Fla. 5th DCA 1994) the representative of the insurer appeared at the court ordered mediation without any authority because the insurer did not intend to make any offer. The insurer was a self insured trust that provided professional liability insurance to a doctor who was a defendant in this medical malpractice case. In response to the plaintiff’s motion for sanctions the lower court ordered the mediation to be reconvened with the entire board of trustees of the insurer to attend. The lower court declined to accept counsel’s offer to have a representative present with a complete delegation of authority to settle from the board of trustees. The insurer sought an emergency writ of certiorari to review the lower court’s order for sanctions. It contended that compliance with the court’s order would work an undue hardship on several members of the board of trustees. The appellate court reversed to give the insurer the opportunity to demonstrate that requiring all members to attend would impose an undue hardship.
Where a party fails to send a required representative to a mediation, the opposing party may waive that lack of compliance with the rules by proceeding to negotiate and entering into a mediated settlement agreement. This is what took place in Western Waste Industries v. Achord, 632 So. 2d 680 (Fla. 5th DCA 1994). The insurer’s representative showed up with only $40,000.00 in authority where the plaintiff sought $1,000,000.00. A settlement was reached for $50,000.00 after the representative telephoned for additional authority. Upon plaintiffs’ motion the lower court set aside the settlement agreement because the defendant’s representative did not bring the requisite authority to the mediation. The appellate court reversed, holding that the plaintiffs could have terminated the mediation and sought sanctions when they learned that the representative did not have the full $1,000,000.00 in authority. Since they did not, they waived the violation and were bound by the settlement agreement into which they entered.
Failure to attend a mediation conference can result in sanctions against an attorney. This was the case in Nunes v. Ferguson Enterprises, Inc., Case No. 96–0733 Fla. 3d DCA 1997) where the attorney failed to attend the conference and advised his clients that they did not have to attend. The appellate court affirmed the trial court’s assessment of attorney’s fees against the attorney.
V. IS GOOD FAITH NECESSARY AT THE MEDIATION?
No! It is of course desirable that parties attend a mediation fully intending to listen to their opponents, evaluate what they have to say and try to agree on a settlement commensurate with the factors parties should consider regarding that case. The factors will vary from case to case. They may include risk, uncertainty of outcome, expense of further proceedings, the preservation of a relationship and the extent to which further litigation distracts from matters which may be of greater importance. But the rules merely require the presence of certain individuals with the required authority. What is in the hearts and minds of those individuals may be Machiavellian or Mephistophelian or some other quality that is counterproductive to a private resolution.
The issue of good faith came before the court in Avril v. Civilmar, 605 So. 2d 988 (Fla. 4th DCA 1992). This was an automobile accident case in which the court granted the plaintiff’s motion to compel mediation less than three months after the defendant was served with process. At the mediation the defendant refused to offer more than $1,000.00 due to the fact that there had been no opportunity to take the plaintiff’s deposition or obtain an independent medical examination. The trial court granted the plaintiff’s motion for sanctions against the defendant. The appellate court reversed the trial court, finding that sanctions are available only for failure to attend the mediation (Fla. R. Civ. P. 1720(b)) and for failure to perform a mediated settlement agreement (Fla. R. Civ. P. 1730(c)) The court noted at 605 So. 2d.989-90 that Section 44.1011(2) Florida Statutes (1991) defines mediation as "...an informal and non adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation decision
making authority rests with the parties." The court added at 605 So. 2d . 990 that:
It is clearly not the intent to force parties to settle cases they want to submit to a trial before a jury. There is no requirement that a party even make an offer at mediation, let alone offer what the opposition wants to settle.
VI. WHO MUST SIGN THE MEDIATED SETTLEMENT AGREEMENT?
A. The Hazards of Not Having a Fully Executed Settlement Agreement
There is no better way to lose the benefits of a hard won negotiated settlement than to leave the mediation without having an agreement in writing and executed by all those whose signatures are required by the rules. Rule 1730(b) Fla. R. Civ. P. requires an agreement reached in court ordered mediation to "...be reduced to writing and signed by the parties and their counsel, if any." If the agreement is not written and signed the court that ordered the mediation will probably not enforce it.
This is what happened in Graves v. Graves, 649 So. 2d 284 (Fla. 2nd DCA 1995, a marriage dissolution proceeding. An oral agreement that was reached at the mediation was recited before a court reporter and the transcript was filed with the court. Family mediation is governed by Fla. R. Civ. P. 1740. Rule 1740(f)(1), like Rule 1730(b), contains language that "...the agreement shall be reduced to writing [and] signed by the parties and their counsel," although counsel must only sign if present. Subsequently the husband’s attorney incorporated the recitals into a written agreement which the wife refused to sign. The trial court’s order granting the husband’s motion to enforce the agreement was reversed by the appellate court. The fact that the agreement was not reduced to writing and signed by the parties and their attorneys was fatal to its enforcement. The court held that the only means for parties to enter into an enforceable mediated settlement agreement was that prescribed by the rule. The court further held at 649 So. 2d 286 that "...parties may not avoid the requirements of this rule by orally agreeing to an alternative procedure during the mediation conference."
The failure of a party to sign a mediated settlement agreement where the mediation was court ordered resulted in a denial of a motion to enforce that agreement, even where his attorney signed in the party’s presence in Gordon v. Royal Caribbean Cruises, Inc., 641 So. 2d 515 (Fla. 1st DCA 1994). Royal Caribbean moved to enforce and the trial court ordered an evidentiary hearing on its motion. The appellate court issued a writ of certiorari to quash the trial court’s order. The court held that strict adherence to Fla. R. Civ. P. 1730(b) is essential if an agreement reached at court ordered mediation is to be enforced. It distinguished the case from those in which agreements that had been reached outside of court ordered mediation had been enforced. Enforcement of oral settlement agreements was also denied in Cohen v. Cohen, 609 So. 2d 785 (Fla. 4th DCA 1992) and Wilson v. Forte Hotels, Inc., 632 So. 2d 271 (Fla. 1st DCA 1994).
That a properly executed settlement agreement arrived at in a court ordered mediation will be enforced is demonstrated in Tubbs v. Tubbs, 548 So. 2d 816 (Fla. 4th DCA 1995). A handwritten agreement was executed at the mediation conference in this dissolution proceeding, but the wife later refused to sign a subsequently prepared typewritten agreement. The trial court denied the husband’s motion to enforce the agreement. It found that the wife was fully informed and advised by her attorney as well as a CPA. It also found that she did not sign under duress. Enforcement was denied because the trial court believed the settlement was unfair to the wife. The appellate court reversed the trial court’s decision, holding at 548 So. 2d 818 that "The fact that one party to the agreement apparently made a bad bargain is not sufficient ground, by itself, to vacate or modify a settlement agreement." What the Tubbs case tells us is to make certain that there is a properly executed settlement agreement before leaving the mediation conference. The parties may plan to draw up a more formal typewritten agreement, but the initial document should contain the essential elements of the parties’ understanding, articulated with sufficient clarity to be enforced.
Where a settlement agreement entered into in a court ordered mediation is properly executed it will be enforced despite the contention of one party that he or she did not realize the extent of the other party’s potential liability. An example is found in Sponga v. Warrow, 698 So. 2d 621 (Fla. 1st DCA 1997), an automobile accident case which was dismissed pursuant to a mediated settlement agreement. Subsequent to the dismissal the plaintiff’s physician revised his medical report to indicate that the accident aggravated a preexisting injury, after. The trial court’s order setting aside the dismissal was reversed by the appellate court. The court held, contrary to the trial court’s finding, that the case did not involve "newly discovered evidence," a concept more appropriate to cases that go to trial. Rather, the court ruled, the settlement involved a unilateral mistake. In upholding the validity of the settlement agreement the court found at 698 So. 2d.625 that:
Finally, we think that cases settled in mediation are especially unsuited for a liberal application of a rule allowing recission of a settlement agreement based on a unilateral mistake. Mediation, like arbitration, is an alternative dispute resolution device. It is not to be engaged in casually or carelessly. The decision to engage in mediation and to settle at mediation means that remedies and options otherwise available through the judicial system are foregone. The finality of it once the parties have set down their agreement is critical. A party who makes the decision to settle with the plaintiff like Mrs. Warrow is entitled to rely of the finality of the mediation agreement. The burden of ascertaining the true facts concerning the cause of a plaintiff’s injury prior to electing to settle the case has to be on the plaintiff.
In Singer v. Singer, 652 So. 2d 454 (Fla. 4th DCA 1995), the appellate court found that a handwritten settlement agreement incorporated into a divorce decree was enforceable despite containing an imprecise provision that: "The parties agree to a ninety day per year cohabitation clause, the exact language of which shall be agreed upon by counsel and the parties." The case was remanded to the trial court to determine if the "cohabitation clause" was ambiguous and, if so, to resolve the ambiguity by hearing extrinsic evidence. The appellate court rejected the trial court’s reasoning that the clause was an unenforceable agreement to agree. The court at 652 So. 2d 455 held that "...once the handwritten document was incorporated into the court’s final judgement, it became the order of the court. The agreement was elevated to the status of a judgement to be interpreted rather than a contract to be enforced." (footnote omitted)
B. Salvaging a Settlement That is Not Properly Executed.
Some reported cases have found bases to enforce settlement agreements reached in a court ordered mediation, even where the necessary signatures are not present.
In Jordan v. Adventist Health System/Sunbelt, Inc., 656 So. 2d 200 (Fla. 5th DCA 1995) an agreement was designated as a "preliminary settlement agreement." It recited that it would later be prepared in final form. The defendant’s counsel failed to sign the preliminary agreement as required by Rule 1730(b). When the parties were subsequently unable to agree on the final form of the document, the court enforced the preliminary agreement. The majority held that it would not permit a party to avoid complying with a settlement by relying on a technical detail in the mediation rules. It distinguished Gordon v. Royal Caribbean Cruses, Inc., supra, as in that case it was a party rather than an attorney who had not signed the agreement. The court rejected the argument that the preliminary agreement lacked sufficient specificity to be enforced. The concurring opinion agreed to enforcement on the basis that the parties had ratified the agreement by taking steps to comply with its terms. They had performed many to the requirements of the preliminary agreement including setting a schedule for document disclosure, providing the mediator with tax returns and canceling pending discovery. The concurring judge admonished that the court’s holding should not be extended beyond the facts of this case.
Indeed the court’s holding was not extended by the District Court of Appeal for the Fourth Circuit to the facts in City of Delray Beach v. Keiser, 699 So. 2d 855 (Fla. 4th DCA 1997). This was a personal injury action against the city in which an agreement was admittedly reached by the parties at mediation and a handwritten memo of the agreement was prepared. The city attorney was the only person who signed the memo. In denying enforcement a majority of the panel held that the requirement of signatures was not merely a technical detail, citing Gordon v. Royal Caribbean Cruise, Ltd., supra. The dissenting judge would have enforced the settlement on common law contract principals. He reasoned that court ordered mediation is not the exclusive means of reaching a settlement. Therefore, an agreement not fulfilling the statutes’ requirement should be enforced like any other contract. Since the dissent in Keiser and the ruling in Jordan v. Adventist Health Systems/Sunbelt, Inc., supra, stand by themselves, it is certainly advisable to comply strictly with the rules rather than depend on the possibility that the court might find some basis for excusing compliance.
In some cases there will be other means of salvaging a mediated settlement agreement that does not conform to the rules. The court in Hanna v. Schmidt, 707 So. 2d 966 (Fla. 4th DCA 1998) reversed a trial court’s order enforcing an oral agreement and remanded the case "...without prejudice to [the] appellee to raise issues of accord and satisfaction and estoppel." 707 So. 2d at 967-68. The court pointed to the fact that so much of the agreement as related to payment of attorney’s fees called for thereunder had been fully performed and that the payments had been accepted.
VII. SETTLEMENT AGREEMENTS ARE SUBJECT TO THE LAWS OF CONTRACTS.
A mediated settlement agreement is a contract which like any other contract creates rights and remedies that may be enforced. The requisites for enforcement of a settlement agreement were in issue in Patel v. Ashco Enterprises, Inc., 711 So. 2d 239 (Fla. 5th DCA 1998). Patel involved an agreement reached in a court ordered mediation in a county court case. The county court was without jurisdiction in that case. Suit was filed in circuit court seeking enforcement of the settlement agreement. The appellate court affirmed the trial court’s decision enforcing the agreement, holding at 711 So. 2d 240:
While a settlement agreement may be a basis on which a judgement may be entered, it is also a contract between the parties, the enforceability of which is governed by the laws of contract. This principal applies even when the court enforcing the settlement agreement lacks subject matter jurisdiction over the earlier action from which the agreement emanated. (citations omitted)
An order enforcing a settlement agreement may not go beyond what the agreement provides. In Boozer v. NCNB National Bank of Florida 641 So. 2d 905 (Fla. 2nd DCA 1994) the appellate court set aside the portion of the trial court’s order mandating that a quitclaim deed relating to fences should contain restrictive covenants. The parties had entered into a mediated settlement agreement that called for the erection of fences, but it did not call for restrictive covenants.
The need for settlement agreements to adhere to the laws governing contracts applies to settlement agreements arising outside of court ordered mediation and mediated settlement agreements alike. There is considerable authority supporting this doctrine in cases where enforcement is sought of settlement agreements into which the parties entered without the benefit of court ordered mediation. In Bateski v. Ransom, 658 So. 2d 530 (Fla 2d DCA 1995) the court found that a purported settlement agreement in an automobile accident case was not enforceable as there had not been a meeting of the minds. The plaintiff’s counsel had offered to accept the policy limits and to have his client sign only a specific release which he provided. Defense counsel replied offering the policy limits but he insisted on a full release. The court stated at 658 So. 2d 631 that
"Settlement agreements are governed by the laws of contracts and to be enforced they must be sufficiently specific and the parties must agree on every essential element." (citation omitted) The court further held that the party seeking enforcement of a settlement agreement has the burden of proving that there was a meeting of the minds. Enforcement was denied as there clearly was no mutual assent with respect to the release which was an essential element of the proposed settlement.
In Williams v. Ingram, 605 So. 2d 890 (Fla. 1st DCA 1992) enforcement was denied where the court found that no settlement agreement had been reached. This was an action in which the purchasers of a home sought relief when they learned that the sellers had built a room addition over an existing septic tank in violation of local ordinances. The sellers sought enforcement claiming that their offer to install a new septic tank and drainfield and have the old septic tank pumped out had been accepted in a letter from the buyers’ attorney. The attorneys’ reply to the sellers’ proposal was that his clients "...were amenable to a cure of the kind you proposed." The court found this not to be an unequivocal acceptance. The court also held that the proposals in the correspondence were not specific enough to be enforced. The proposals did not specify the labor and materials to be used. As an additional ground for its holding the court found that the purchasers had not authorized their counsel to enter into such an agreement.
VIII. APPEALS OF ORDERS RELATING TO ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENTS
Appellate courts have not infrequently heard appeals from orders enforcing or denying enforcement of mediated settlement agreements. There is some disagreement as to the nature of the review that the appellate courts may offer. Many of the reported cases have characterized the review as certiorari. The Fourth District Court of Appeals took a different view in Croteau v. Operator Service Company of South Florida, Inc., 721 So. 2d 386 (Fla. 4th DCA 1998).
In Croteau when one party refused to abide by a settlement agreement, the appellant sought enforcement pursuant to Fla. R. Civ. P. 1730(c). The appellant sought a writ of certiorari to review an interlocutory order denying enforcement. The appellate court held that certiorari does not lie to review an interlocutory order denying enforcement of a settlement agreement. The court reasoned that a Rule 1730(c) motion to enforce a settlement agreement is a separate and distinct action from the underlying action as it deals with the agreement rather than the facts of the case. The court held that an order denying enforcement is therefore a partial final judgement under Florida Rule of Appellate Procedure 9.110(k). As such it may be appealed after the order is entered or after final judgement. However the court heard the appeal based on Florida Rule of Appellate procedure 9.040(c) which allows the court to treat an appeal seeking an improper remedy as if the proper remedy had been sought.
The Croteau court took issue with the decision of the Fifth District Court of Appeals in Western Waste Industries, Inc. v. Achord, supra, which granted certiorari to review an order of the trial court setting aside a mediated settlement agreement. It found the appeal to be analogous to an order seeking sanctions for failure to attend a mediation conference. The court considered certiorari appropriate as in the absence of the review the parties would be compelled to continue litigating the case and as a result there was no adequate remedy at law. The Croteau court held that this was not severe enough harm to allow certiorari, citing Naghtin v. Jones, 680 So. 2d 573 (Fla. 1st DCA 1996 and Martin- Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)
IX. SPECIAL CONSIDERATIONS WHEN SETTLING ADEA CASES
Certain precautions must be observed in settling an ADEA claim. The employer will want a waiver or a release of the employee’s claims. To be valid and enforceable a waiver of an ADEA claim must fulfill certain requirements. These requirements are spelled out in Older Workers’ Benefit Protection Act ("OWBPA") 29 USC §626(f) which amended the ADEA in October of 1990. OWBPA requires that a waiver must be "knowing and voluntary." The minimum requirements of OWBPA for a waiver to be knowing and voluntary are set forth in the statute:
1. It must be part of a written agreement between the employer and employee.
2. The waiver must refer specifically to rights or claims arising under the ADEA.
3. The waiver must not attempt to release claims that may arise after the date of its execution.
4. The employee must receive consideration in addition to anything of value to which the employee is already entitled. For example, if the employer’s policy entitles the employee to a certain amount of severance pay without signing a waiver, the employer must provide consideration in addition to that severance pay.
5. The individual must be advised in writing to consult with the attorney prior to executing the agreement.
6. The employee must be given no less than 21 days to consider signing the agreement. If the waiver is in connection with an exit incentive or other employment termination program offered to a group or class of employees the individuals must be given at least 45 days to consider the agreement.
7. The agreement must be revocable by the employee for seven days after its execution.
8. Where an exit incentive or employment termination program is involved the employee must be provided certain information in a manner that can be understood by the average individual. The employee is entitled to know any class or groups of individuals entitled to or eligible for the program as well as the job titles and ages of all individuals eligible for or selected for the program.
Where a waiver is in settlement of a charge filed with the EEOC only the first five of the above requirements apply. However, the employee must be given a reasonable period of time to consider whether to sign. 29 USC §626(f)2(A) and (B). It is recommended that the employer be generous in allowing time. In at least one case the court found for determining a reasonable time to be the time limits for signing where no charge is involved. Jacobs v. New York Financial Center Hotel, DC SNY 96 Civ. 7088, 6/5/97.
Counsel should be aware that although the employer and the employee may settle an ADEA claim as between themselves, their settlement cannot bar the EEOC from proceeding. However, the EEOC cannot make a recovery for the benefit of the employee who has signed a release. EEOC v. Cosmair, Inc., L’Oreal Hair Care Division, supra; EEOC v. Kidder Peabody & Co., 74 FEP Cases 1833 (S.D. NY 1997); and EEOC v. Kidder, Peabody & Co., Inc. 156 F. 3d 298 (2nd Cir. 1998).
On occasions employees have settled their ADEA claims and then filed suit claiming that the waiver was invalid and did not bind them. Unfortunately for employer the employee who has received consideration for signing a release does not have to tender that consideration to be able to maintain such a suit since the decision in Oubre v. Entergy Operations Inc., 118 S. Ct. 838 (1998). However sums paid to the will be set off against any subsequent judgement against the employer. The moral is be certain that all the requirements for a release to be knowing and voluntary have been fulfilled and carefully observe the OWBPA requirements in an ADEA case.
Mediation is a process with great potential for benefitting litigants and potential litigants. It has its own body of rules and case law. Observing those rules and being aware of the cases interpreting them will enable counsel to avoid potentially serious obstacles to reaping the advantages of the mediation process.
Biography of Donald J. Spero
Donald J. Spero is a graduate of the University of Michigan Law School. He served for over 20 years in the Law Department of Sears, Roebuck and Co. where he was senior employment law counsel. Mr. Spero has advised clients and served as counsel in cases dealing with an exceptionally wide variety of factual situations arising under the statutes and common law theories involving the employment relationship. Mr. Spero is a member of the state bars of Illinois and Florida. He has been certified by the Florida Supreme Court as a circuit and county court mediator. He currently devotes his time exclusively to serving as a mediator and an arbitrator. He is on the panels of Employment Arbitrators and Mediators of the American Arbitration Association and the National Association of Security Dealers.