The Importance of Signed Minutes of Settlement
We have all been in lengthy mediations that carry on well past 5pm. At the end of the day when a settlement number is agreed on, the parties may decide to finalize the settlement after the mediation, the next day, or even later.
This may not be wise, as you could end up arguing a motion about whether a settlement was reached in which mediation communications are admissible as in the case of Peres v Moneta Porcupine Mines Inc., 2021 ONSC 5798 (CanLII)
The plaintiff, Ian C. Peres, brought a successful motion enforcing a settlement agreement that was purportedly reached via email correspondence between counsel within an hour following the end of a full day mediation. There were no minutes of settlement signed, and the defendant denied that a settlement was reached despite numerous emails exchanged following the mediation. The issue before the Superior Court was whether the emails following the mediation were an agreement to settle.
Upon reviewing the emails, the Court found that “the essential terms are clear, albeit requiring embodiment in formal legal language to be drafted by counsel.” The Court found there was little merit in defendant counsel’s argument that there was no “meeting of the minds” instead, it found that the parties did agree on the essential terms, but some further work was required to write up the details.
TAKEAWAY: If you believe there is a settlement in principle, ensure there are signed minutes of settlement before walking away from the mediation.