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Mediation: Connecticut State Court Finds Settlement Rejection Is Really 'Buyer's Remorse' (Web)

In an unpublished opinion, Pinette v. Petosa, No. HHBCV065000722S (Conn.Super. March 21, 2007), a New Britain, Conn., Superior Court granted a motion to enforce a mediation settlement agreement despite the plaintiff’s insistence on proceeding in court with a legal malpractice action.

Superior Court Judge Jonathan E. Silbert ordered the plaintiff to accept the defendant's settlement check, execute the release forms, and file a properly executed withdrawal of the action by April 20.

Plaintiff LeRoy Pinette contended that his attorney improperly represented his interests in connection with a foreclosure sale. The parties agreed to mediate the case, and reached a settlement.

Pinette contended that he had not been aware, at the time of the mediation, of certain statements made by Ronald Petosa , the defendant attorney, at his deposition. In particular, Pinette had not realized that Petosa had claimed that he had spoken to a foreclosure committee involved with the sale in order to request a postponement of the foreclosure sale, and that the committee had responded that he could not agree to a postponement.

Both parties had agreed to schedule the mediation through the Connecticut state Judicial Branch's Court-Annexed Mediation Program. The mediation lasted about five hours, according to Judge Silbert’s opinion, and when the settlement was eventually reached, its details were then confirmed in the courtroom with all parties and counsel present.

Two days following the mediation, on Dec.5, 2006, Pinette's counsel wrote to the defendant's attorney confirming the mediation settlement, and requesting how the check should be drawn up. Defense counsel responded on Dec.18, 2006, enclosing the check. That same day, however, Pinette's counsel “orally advised defense counsel” that Pinette “no longer wished to settle the matter” and had instead decided “to take his chances at a trial,” according to the opinion.

The defendant filed a motion to enforce the mediation agreement.

At a March 12 hearing, plaintiff Pinette testified that he learned of defendant Petosa’s statement about the foreclosure committee after the mediation, by reviewing a deposition transcript.

He argued that if he had the opportunity to review the transcript before the mediation, he wouldn’t have settled.

Judge Silbert rejected the argument and upheld the settlement for several reasons.

First, he cited the well-established Connecticut policy favoring the settlement of legal disputes–demonstrated “by the very existence of the Judicial Branch's Court-Annexed Mediation Program”--as well as “the court's inherent authority to enforce settlements” that are reached “for the purpose of avoiding the risks inherent in trials.” See Audubon Parking Associates Limited Partnership v. Barclay and Stubbs, 225 Conn. 804 (1993); DAP Fin. Mgmt. Co. v . Mor-Fam Electric Inc., 59 Conn.App. 92 (2000)).

Second, the plaintiff was present throughout the defendant's deposition, and “cannot fairly claim that he was surprised to learn of the defendant's statement only after having read the deposition transcript.”

On a related note, Silbert’s third reason was that the deposition transcript was in fact available for a full week before the mediation, providing ample time for the plaintiff and his counsel to review it.

Fourth, although the plaintiff testified that the foreclosure committee had denied that the defendant had contacted the plaintiff about the postponement, the court properly sustained the defendant's hearsay objection to this statement. Plaintiff Pinette could have, but did not, offer the committee's direct testimony on this point. Judge Silbert concludes that even if Pinette had offered such testimony, the plaintiff did not demonstrate how this evidence would have changed the mediation outcome–“other than to aver that he would have taken a harder line and demanded more money.”

Finally, Silbert held that the fact that discovery was incomplete at the time of the mediation “hardly serves” to invalidate the mediation results.

The opinion notes that parties often resort to mediation in an effort to avoid the added time, effort and expense that additional discovery would entail. Silbert wrote: “When the parties and their counsel agree to mediate on a certain date, and they reach an unambiguous settlement agreement on that date, it is fair to assume that they have concluded that they have conducted sufficient discovery to enable them to make intelligent settlement decisions, even if that discovery is less than ‘complete.’”

The court reasoned that the mediated disposition would encompass the plaintiff's concerns about the harms he sustained, the issues concerning the strengths and weaknesses of his case, as well as an appropriate measure of damages. For the plaintiff to regret that he did not receive a larger settlement is simply a “part of the nature of compromise”: “That the plaintiff now has a post-mediation case of ‘buyer's remorse,’ however, is not a valid reason for undoing the results of that mediation or for denying the defendant's motion to enforce the settlement agreement on its original and admittedly unambiguous terms.”

–Lauren Gray, CPR Intern