Resolution of a family conflict by mediation in trust and estate litigation is satisfying for the mediator but often tiring and less satisfying for the parties in conflict. Inherent in the mediation process is some give and take on all sides. While mediators like to talk about “enlarging the pie” to the end that everyone gets all of their needs met, it is often the case that parties leave the mediation session with less than everything they hoped for or believed they would be awarded by the courts.
This requires that counsel for the litigants, not the mediator, insure that any settlement the parties reach is as enforceable as any contract. While most lawyers learned basic contract law in their first year of law school and confronted a basic contracts question on their admission exam, some lawyers forget basic contract law when drafting their settlement agreements following mediation. A valid, signed contract serves as the first defense to an effort to revoke a settlement agreement by a party who experiences remorse.
Colorado also offers the parties, pursuant to CRS 13-22-308, an opportunity to streamline the enforcement of mediated agreements as court orders. Yaekle v. Andrews, 195 P.3d 1101, 1108 (Colo. 2008). Getting signed settlement agreements approved and adopted as orders of the court is relatively simple in trust and estate litigation. Most attorneys use the Rule 8.8, Colorado Rules of Probate Procedure Non-Appearance Hearing process. Making the settlement contract an order of the court offers a variety of additional mechanisms not only to resist any effort to revoke the settlement itself but also to invoke the court’s inherent authority to enforce its own orders.
Mediation is hard work for the mediator, for the parties and for the lawyers involved. Everyone wants to avoid the consequences resulting from a party changing his or her mind. A successful mediation calls on the best lawyering skills to reduce the terms of the agreement to an enforceable contract. When appropriate, seeking court approval and making the settlement agreement an order of the court further reinforces the agreement and enhances the likelihood that its terms will be carried out.