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Court-Ordered Mediation Agreement Must Be Written

Susan M. Yates, July 27th, 2010

The Missouri Court of Appeals has issued a decision that is instructive as to what can happen when an agreement reached in a court-ordered mediation is not reduced to writing before everyone leaves the mediation. The decision also highlights the potential tension between an emphasis on good faith participation and confidentiality, although it never discusses good faith.

Missouri’s Supreme Court Rules 17.01(d) and 17.06(c) specifically require that agreements be memorialized. In this situation, one party left the mediation, saying they would return to finalize the agreement, but did not do so for an hour, at which point the other party and the mediator ended the mediation. During the ensuing week, there were follow-up efforts to finalize the agreement, but the party who had left the mediation quibbled with various drafts of the agreement.

The Appellate Court, reversing the trial court, found that the plain language of Supreme Court Rule 17.06 (c), “Settlement shall be by a written document setting out the essential terms of the agreement executed after the termination of the alternative dispute resolution process,” makes it clear that a written agreement is required. Additionally, the drafters of the rules cleverly put the drafting of an agreement after the ADR process so that confidentiality requirements no longer apply. Had there been a written agreement, the parties and mediator could have testified about it.

This case illustrates the sometimes difficult balance between competing values in mediation. What may be frustrating about this case for those who value a broad definition of good faith participation is that the party who left without signing an agreement and then would not pin down an agreement following the mediation got to wiggle out of the agreement. On the other hand, for those who value confidentiality in mediation, the Court pointed out that determining whether agreement was reached, short of a written document, required piercing mediation confidentiality. By upholding the requirement of a written agreement, the Court protected the confidentiality of the mediation process.


Many thanks to the good people at Willamette University College of Law Center for Dispute Resolution for their Dis-Res mailing list ( where I learned about this decision. Contact them at

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