It is not unusual for one of the parties to a mediated
settlement to change their mind a few days or even weeks after a
settlement has been negotiated at mediation. This situation
is known as "settler's remorse".
In Morant v. Sun Life Assurance Company of Canada, the
Plaintiff brought a motion to set aside a mediated
settlement. Mr. Justice Daley dismissed the Plaintiff's
motion and enforced the mediated settlement. He indicated
that there was no medical evidence offered that would even suggest
that the Plaintiff was medically unfit at the time of mediation or
that she did not have the capacity to enter into agreements with
the Defendants to settle the actions.
The Judge found no problem with the mediated agreement and said
that buyer's remorse was not a good reason to reverse it.
At its highest, the Plaintiff had put forward evidence that she
had a change of heart, or what could be described as buyer's
remorse, approximately three weeks after the conclusion of the
settlement. This does not constitute proper grounds for
setting aside a properly concluded settlement.
The Judge emphasized that a Court would generally hold those
involved in a settlement to its negotiated terms. The
exceptions arise when the resulting agreement and settlement were
unconscionable or fraudulent, or they involved misapprehension of a
material fact known to the other party; the solicitor did not have
authority; or there was an absence of the legal or mental capacity
to enter into the settlement. If one of those terms is not
present, then the settlement will be enforced.
This case serves as a reminder to lawyers to document the
process. Every mediated settlement should be reduced to written
Minutes of Settlement to outline specifically what terms the
parties have agreed to. It is also prudent to complete a Full and
Final Release which contains a paragraph indicating that the
Plaintiff's lawyer has explained the details of the
settlement. The Plaintiff should always be required to sign
the actual Mediation Agreement which contains the terms of the
If the settlement is properly documented by written Minutes of
Settlement which are signed by both the Plaintiff and her lawyer,
as well as a written Release that specifies the Plaintiff has had
independent legal advice, which will also be acknowledged by the
Plaintiff's lawyer, then the mediated settlement will likely be
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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