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Saturday, December 14, 2013


Most will and trust disputes in Florida involve at least one mediation attempt – either by order of the trial court or agreement of the parties. Such mediations usually begin in the morning, and often do not wind-up until the evening or wee hours of the morning.

If a settlement is reached, smart mediators will attempt to have the parties negotiate and sign a binding settlement agreement before they leave. This is because if litigants have to time think about a settlement after leaving the mediation, they will often change heir minds and the settlement will evaporate. Thus, at the end of the mediation, litigants are often both physically and emotionally exhausted.

In a recent Florida case, the trial court allowed one of the parties to a will contest to escape from a mediated settlement agreement. The party claimed she was coerced into signing the mediation agreement after the mediator allegedly denied her request to take the agreement home over the weekend to study it.

The trial court noted:

The Court believes that the request for additional time to review was not given the priority or emphasis it should have because Ms. Linda Pierce was fatigued and emotionally distraught from the extensive mediation efforts. However, it is clear that Ms. Linda Pierce, after taking one night to reflect and review the terms of the Agreement, immediately went to the office of the mediator on Saturday morning and hand delivered a note requesting that the Agreement be rescinded. Ms. Linda Pierce also met with her attorney early the next Monday morning and instructed him to file a Motion to Vacate the Settlement Agreement. When Mr. Cummings suggested he could not file such a motion as it would put him in a position of a conflict of interest, Ms. Linda Pierce asked him to draft the Motion, which she then filed pro se.

The trial court concluded that Ms. Pierce had not “freely, knowingly and intelligently entered into the agreement.”

The appellate court reversed the trial court and ordered the settlement agreement to be enforced. To void the agreement, the presence of fraud, misrepresentation, coercion, or overreaching is needed. Fatigue, distress, and second thoughts are not enough.

The appellate court noted that emotion is not grounds to set aside an agreement, since courts recognize that it is normal for parties in these matters to be emotionally upset. Further, the parties were ably represented by counsel experienced in probate law, and the parties reviewed and corrected several drafts of the agreement over the course of the mediation. While the challenging party may have at one point made a request to review the agreement over the weekend, the fact that at the end of the day she had read and signed the agreement without requesting additional time for review was evidence of lack of coercion.

TAMRA E. PIERCE, Appellant, v. LINDA MARIE PIERCE IN RE: ESTATE OF CECILIE REDLINGER PIERCE, DECEASED, Appellee. 1st District. Case No. 1D13-1546. Opinion filed December 10, 2013

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