Do I understand private mediation?

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The question:

When Phillip Moffett went to work for the Aztec Pharmaceutical Company as a senior researcher, he signed a covenant that precluded him from working for another pharmaceutical company for five years after his employment with Aztec terminated. After working for Aztec for three years, Moffett was lured away by another pharmaceutical company. Moffett claims that the covenant he signed was unreasonable and therefore unenforceable. Aztec claims the covenant is a standard industry covenant and is enforceable.

Discuss whether private mediation would provide the parties with an appropriate method of dispute resolution. Explain if the parties agreed to private mediation, the action Phillip Moffett should take in order to prepare for the mediation. These answers should be based upon the information and legal authority contained in chapter 10.

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My answer:

Three years after Mr. Moffett was hired by Aztec, he chose to leave. His defense for breaching the employment contract was that the terms of the agreement are unreasonable and unenforceable. Aztec's position was that the terms of the agreement are not only enforceable but are industry standard. The contract may or may not have included a private mediation provision. If it did, the parties would follow the process outlined in the contract. If it did not include the provision, the parties may still decide upon selecting private mediation as their dispute resolution process (Frey, 2012).

Should the parties elect private mediation, they would then "design the rules for their mediation and may select their own mediator" (Frey, 2012). The parties will decide upon obtaining legal representation, as well as the setting and timing for the mediation. If legal representation is secured, a decision on who will attend the mediation will need to be made as well. Should the attorney appear with their client, they will decide on what roles each would play and how vocal they would be. How to behave, what to wear, what to say and when to say it are things which will be discussed during preparation (Frey, 2012).

With or without legal representation, Mr. Moffett should be prepared with documents and other evidence that might help Aztec understand the merit of his claim and the lack of merit in Aztec's claim (Frey, 2012). "Facts, feelings, and needs and interests" must be fully articulated (Frey, 2012). Presentation and consideration of various solutions and the ability to evaluate offers and counteroffers is necessary. Should a point come in mediation that he feels he cannot go forward without needed expertise, he should be able to ask for a continuation.

Should Mr. Moffett not attend mediation, having only his attorney represent him, Mr. Moffett and his attorney will decide beforehand a settlement amount Mr. Moffett is comfortable with. With that information, Mr. Moffett's attorney will be able to negotiate a fair deal on his behalf. If the amount requested is above what Mr. Moffett and his attorney discussed, then his attorney cannot accept that proposal and would need to discuss the details with Mr. Moffett before moving forward.

After a mediated agreement has been reached, it should be in writing as opposed to an oral settlement. This will serve the parties better in order to avoid possible issues at a later date. As seen in Vernon v. Acton, 693 N.E.2d 1345 (Ind. Ct. App. 1998), the plaintiff-appellants denied the existence of the oral agreement made at their pre-trial mediation. The mediator did not "prepare or submit a written version of the agreement to the parties to be signed" (Frey, 2012). Mr. Vernon claimed he was not under the impression that a binding agreement had been entered into. The Court noted, "In general, settlement agreements need not be in writing to be enforceable. Ind. Farmers Mut. Ins. Co. v. Walters, 221 Ind. 642, 646, 50 N.E.2d 868, 869 (1943); Klebes v. Forest Lake Corp., 607 N.E.2d 978, 982 (Ind. Ct. App. 1993). However, when a settlement agreement is reached in mediation, the mediation rules required that 'it shall be reduced to writing and signed. A.D.R. 2.7(E)(2).'" Defendant and mediator assumed an agreement was reached; however, plaintiff claimed otherwise. The mediator testified an agreement was reached, prompting a discussion about confidentiality. Mr. Moffett as well as Aztec will need to make sure their mediation agreement is in writing.