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Harkrader v. Farrar Oil Co.5/27/2005
ed to be in writing in order to be enforced. Nevertheless, in the interest of judicial economy, we will briefly address them.
First, while the mediation agreement did contain a specific provision to the effect that the mediator could not be compelled to testify or to produce records, notes or work product in any future proceeding, nothing in that document precluded the mediator from providing the trial judge with pertinent information of his own volition. His affidavit was entirely competent and the trial judge did not err in considering it. Nor was there anything unethical or improper in appellant's counsel reciting for the trial court his recollection of the facts surrounding the mediation, the settlement agreement and appellant's subsequent attempt to repudiate that agreement. Counsel fully disclosed to the trial court that appellant's attempt to avoid the terms of the settlement had placed him in an awkward position and he informed the trial judge that appellant would be personally presenting his position as to the existence of a settlement agreement. We find absolutely nothing improper in the trial court's handling of the argument presented at the hearing.
Next, it must be emphasized that this was a voluntary mediation in which enforcement of the Model Rules had not been invoked. In any event, appellant's reliance upon Mediation Rule 11, which requires that the parties' agreement be reduced to writing, is misplaced. Obviously, disputes of this type would be avoided if a writing can be executed at the mediation conference, but the rule does not require simultaneous execution of a written document. And, of course, reason dictates that in complex cases generating a settlement document at the mediation conference may not be possible.
The trial judge had before him abundant evidence from which he could conclude that a binding settlement agreement had been reached, as well as to the specific terms of that agreement. This case falls squarely within the rationale set out by the Supreme Court of Kentucky in resolving a similar dispute:
The second inquiry is whether the settlement offer of $500,000.00 was accepted before it was withdrawn. There again, a dispute of fact existed before the trial court. This dispute was resolved against General Motors.
This Court in its appellate capacity is bound by the trial court's finding of fact unless there is clear error committed or there is an abuse of discretion by the trial court. Appellant has failed to demonstrate clear error or abuse of discretion or, in fact, any alleged error the trial judge had an opportunity to consider. We find absolutely no basis for disturbing the decision of the trial court and its judgment is in all respects affirmed.
ALL CONCUR.
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