In Wisconsin, absent excusable neglect, newly-discovered evidence, fraud, illegality or subsequent change in circumstances, a court can vacate a judgment or settlement agreement only if it finds “extraordinary circumstances” justifying relief from the judgment or agreement in the interests of justice. In a recent unpublished decision, the Wisconsin Court of Appeals decided that a woman’s subsequent “discovery” of earlier releases she executed with a former business partner prior to entering into a mediated settlement agreement did not constitute such extraordinary circumstances. The woman admitted that she had effective legal counsel in the mediation and she did not assert that she did not voluntarily choose to participate in the mediation and enter the settlement agreement, rather than to litigate the business dispute. The mediation was conducted at an early stage of the litigation and the woman asserted that she did not remember or appreciate the legal significance of the earlier releases. Nonetheless, both the trial court and the appellate court found nothing extraordinary enough to justify vacating the mediated settlement agreement.
I question whether this woman’s legal counsel was truly effective. Preparation is as important prior to entering into settlement negotiations as it is prior to trial. If these litigants truly had released their claims in prior documents, this should have been discovered and discussed before or during the mediation. However, the courts’ decisions in this case, upholding the mediated settlement agreement, are not unusual. Courts do not exist to extricate people from their own neglect, mistakes or lack of preparation. This is why it is often just as necessary to have an attorney represent parties in mediation as it is in litigation. Even so, mediation will usually result in a faster and more economical resolution of the dispute. Satisfaction with the result depends on the partipants’ and the mediator’s preparation. There is nothing extraordinary about that.