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IN THE CIRCUIT COURT FOR CALVERT COUNTY, MARYLAND

THOMAS MELVIN SUIT                            :

 

Plaintiff                                                           :

 

vs.                                                                      :

 

CYNTHIA INNOCENTE SUIT                   :           Case No.  04-C-10-000654

 

Defendant                                                        :

 

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OPINION AND ORDER OF COURT

 

This case came before this Court on Plaintiff’s Motion for Partial Summary Judgment,  Plaintiff’s Motion to Compel Enforcement of Settlement Agreement,  as well as the merits of his Complaint for Divorce.  Plaintiff, Thomas Suit, sought a Final Judgment of Divorce incorporating a “Settlement Agreement” that resulted from a mediation which took place while an action between these same parties similar to the instant case was pending in the Circuit Court for Worcester County. 

On June 27, 2011, this Court held a hearing on these matters, and for the reasons stated on the record at the conclusion of that hearing, this Court denied the Plaintiff’s Motion for Partial Summary Judgment, granted his Motion to Compel Enforcement of Settlement Agreement, and awarded a Final Judgment of Divorce based on the merits of the Plaintiff’s Complaint on now uncontested grounds.  At that time this Court also stated that it would further explain those rulings in a written Opinion to follow.  This is that Opinion.

BACKGROUND

This case’s precursor was originally filed in the Circuit Court for Worcester County, Maryland.  Robert Crum, Esquire represented the Plaintiff, Thomas Suit.  Jeffrey Ray, Esquire formerly represented the Defendant, Cynthia Suit.  As a result of protocols and procedures established both through the Maryland Rules of Procedure and the implementation of those Rules by the Circuit Court for Worcester County, the parties were referred to mediation of all previously unresolved issues with a qualified and Court-approved Mediator Barbara R. Trader, Esquire.  The conduct of the parties, their counsel, and even intermittently, the Mediator at that mediation on February 2, 2010, would ultimately become an issue before this court as a result of the events that followed. 

At the conclusion of the mediation, it is undisputed that the parties signed a handwritten document executed in the presence of their counsel and, in fact, also signed by them.  This document was later produced in the proceeding in the Circuit Court for Calvert County and admitted into evidence.  Its characterization by Plaintiff through his counsel as a “Settlement Agreement” generated the major issues in this case.

Defendant disputed that characterization by alleging alternatively that at the time she signed the document she did so under “duress,” that she lacked the capacity to knowingly and intelligently enter into the “Settlement Agreement,” and that Plaintiff somehow abandoned the “Settlement Agreement” as a result of the subsequent actions and delays by him and his counsel. 

This Court heard and saw no evidence during the June 27 Hearing to even suggest an inference that during the Worcester County mediation Mrs. Suit in any way exhibited a lack of capacity to discuss and resolve the issues in the case.  There were vague allusions to “duress” by the Mediator and later by Plaintiff’s counsel.  Though all accusations about the conduct of the Mediator were expressly withdrawn or disclaimed by Counsel for Mrs. Suit, Thomas McCarthy, Esquire at both the April 6, 2011, and the June 27, 2011 hearings in Calvert County, this was not done in time to avoid a subpoena and a subpoena duces tecum being issued and served on the Mediator, Barbara R. Trader, at the request of Plaintiff’s counsel seeking evidence to defend his position that Mrs. Suit did not suffer from “duress” or any lack of capacity affecting her ability to enter into a settlement agreement.

The Mediator immediately filed a Motion to Quash the Subpoena Duces Tecum requiring her to personally appear in this Court to testify and produce her notes which describe what she observed in the mediation and what occurred therein.  This Court’s ruling on that Motion may be of interest not only to the Mediator in the instant case, but to other mediators and the “mediator community” as well.  It is this Court’s hope that I thoughtfully address the conflicting priorities that the Maryland Court of Appeals sought to balance when enacting the applicable Series 17 Rules of Procedure. 

This Court’s ruling was to deny the Mediator’s Motion to Quash and require her to testify.  The reasons follow.

The first consideration was that the Motion was filed and made solely by the Mediator.  Although it was “joined” by the Defendant’s verbal proclamation in open court through her counsel, the record of this case reflects that the Motion was solely the Mediator’s, and there was never a formal written joinder by the Defendant.  This fact was certainly not dispositive, but this Court views it as significant in light of the express language of Maryland Rule 17-109, entitled “Mediator Confidentiality.”

Rule 17-109 states that generally all “mediation communications” are confidential and that “a Mediator…may not disclose or be compelled to disclose “mediation communications” in any judicial, administrative, or other proceeding.”  Subparagraph (b)(2) Rule 17-109 states that the parties and any others present may not disclose mediation communications or be compelled to do so in any similar proceeding, and subparagraph (c) specifies that an agreement signed by the parties is not confidential unless the parties otherwise agree. 

Rule 17-109 clearly directs that “a mediator and any person present or otherwise participating in the mediation…shall maintain the confidentiality…” However in subparagraph (b)(1), it pointedly confines the right to enter into a written agreement to maintain confidentiality of all “communications” to “the parties.” And in (b)(2) the express language of the Rule again narrows who can assert the right to maintain confidentiality to “the parties” and “any person present or otherwise participating in the mediation at the request of a party” (emphasis added).

Nonetheless, the express language of Maryland Rule 17-109(d) provides direct and specific guidance applicable to the case at bar.  That Rule directly addresses “Permitted Disclosures” of “mediation communications”, as follows:

 

“a mediator and a party may disclose or report mediation communications to a potential victim or the appropriate authorities to the extent that they believe it necessary to help:

(1) prevent serious bodily harm or death,

(2) assert or defend against allegations of mediator misconduct or negligence, or

(3) assert or defend against a claim or defense that because of fraud, duress, or misrepresentation a contact arising out of a mediation should be rescinded.”

 

“Mediation communications” are defined in Maryland Rule 17-102 as “speech, writing, or conduct made as a part of a mediation, including communications made for the purpose of considering, initiating, continuing, or reconvening a mediation or retaining a mediator.”

In the instant case, no party contends that the disclosure of any “mediation communication” was necessary to “prevent serious bodily harm or death.”  And this Court, sua sponte, specifically inquired on the record of counsel for Mrs. Suit in the Calvert County Case, on at least two occasions, whether his client was alleging “mediator misconduct or negligence.”  The response to each inquiry was an unequivocal “No.”[1]

Mrs. Suit claimed that “because of duress” the contract arising out of the Worcester County Mediation should be “rescinded.”  In the Defendant’s Answer to Plaintiff’s Amended Complaint filed on April 1, 2011, she stated that she withdrew her agreement “as a direct result of pressure and coercion exercised upon her by the Mediator.”  Though the specific language of this Answer was subsequently disavowed and amended by the Party’s counsel who filed it, it was still suggested verbally thereafter.  This coupled with the fact that the general allegation of “duress” was never withdrawn constituted more than sufficient cause for this Court to compel the disclosure of the “mediation communications” necessary to determine whether an agreement was reached which was not the product of duress such that it should be rescinded.

Maryland Rule 17-109(d) is fully dispositive of whether the Mediator in the instant case should be compelled to disclose “mediator communications” from the February 2, 2010 Worcester County Mediation.  For that reason this Court does not address directly the issue of whether the Mediator herself had the standing to independently assert the privilege of confidentiality.  That issue remains unsettled, although we note that the obvious intent of the Court of Appeals in enacting Rule 17-109 was to incentivize the settlement of cases by enhancing and fortifying the confidentiality of the mediation process.  The Rule promotes candor with the Mediator and with each other by the parties.  The shielding of the Mediator from the compulsory processes initiated by parties or their counsel was to guarantee the integrity of the mediation process.  In the instant case, the maintenance of that shield in the face of the allegations of lack of capacity and duress would have the opposite effect.  This Court accordingly elected to pierce that shield in this case.

The Defendant also alleged the following grounds for this Court to either rescind or find that there was no “settlement agreement.”  This Court found no merit in each for the reasons stated in open court, but we elaborate here.

VALIDITY OF THE DOCUMENT

The Defendant argues that the document signed at the session’s end merely memorialized the mediated discussions, and that the negotiations continued after the mediation session.  She states that the object of the mediation session was to agree to a full and final agreement that could be incorporated into a decree of divorce, citing letters between the parties that followed the mediation to illustrate this point. 

Indeed, the parties entered into the mediation intending to reach such an agreement, and they did just that.  The Mediator’s testimony convinces this Court that the parties came to a settlement agreement, and both parties and their attorneys signed it.  For that reason, that agreement is not unenforceable merely because it was not initially embodied in a divorce decree, Shacter v. Shacter, 251 Md. 304, 307-308, 247 A.2d 268 (1968).  Public policy, moreover, favors the enforcement of settlement agreements, especially outside of the courts.  Bernstein v. Kapneck, 290 Md. 452, 459, 430 A.2d 602 (1981). 

DURESS

Duress is defined as “any unlawful threat or coercion used by a person to induce another to act (or to refrain from acting) in a manner he or she otherwise would not (or would).”  Black’s law Dictionary 504 (6th ed. 1990.)  In order to establish duress, there must be a wrongful act that deprives an individual of the exercise of free will.  Eckstein v. Eckstein, 38 Md. App. 506, 512-513, 379 A.2d 757 (1978).  Here, the conduct at issue concerns two letters sent by Plaintiff’s Counsel to Defendant’s Counsel in the Worcester case.  In those letters, dated October 27 and November 19, 2009, as a part of the settlement offer, Plaintiff’s Counsel offered to not initiate criminal prosecution against Defendant.  Defendant alleges those letters caused her severe distress during the mediation on the first of February of 2010.  Defendant also has provided a police report that outlines the response to a call from Defendant to a suicide hotline the day after the mediation. 

Mrs. Suit’s testimony is not persuasive to this Court.  There is no evidence to suggest Defendant’s call to the suicide hotline related to the threat in the letters, as opposed to the divorce in general.  The nature of Plaintiff’s letters notwithstanding, they did not deprive or restrict Defendant of her free will.  She signed the document while represented by her lawyer and in his presence.  The Mediator testified both that Defendant spoke and interacted with the others present at the mediation, and that although she was emotional, her conduct was not out of the ordinary.  The letter, moreover, was addressed to her lawyer, and predates the mediation by three months.  As Defendant correctly notes, duress need not amount to actual violence or threat to take life or inflict harm, and case law clearly states that physical compulsion is not necessary.  See United States use of Trane Co. v. Bond, 322 Md. 170, 175-180, 586 A.2d 734 (1990).  Nevertheless, the facts here do not amount to the kind of conduct the Maryland appellate courts or, for that matter, any state’s appellate courts have ever considered to be even arguably “duress.” 

WAIVER

Defendant also argues that the Plaintiff has waived any enforcement of the Worcester agreement.  Defendant believes that the Plaintiff could have filed a Motion to Enforce the Agreement as early as February 2, 2009, but instead waited over a year, not doing so until March 15, 2011, in his amended complaint.  The Defendant also argues that continuing negotiations after the Worcester case’s dismissal are inconsistent with any intention to enforce the agreement. 

            The waiver of a claim must be intentional.  Food Fair Stores, Inc. v. Blumberg, 234 Md. 521, 531, 200 A.2d 166, 172 (1964).  Though it can be inferred from conduct, Plaintiff’s conduct hardly amounts to a waiver, whether express or implied.  Plaintiff certainly did continue discussions related to the drafting of documents to memorialize their agreement after the Worcester mediation, as Defendant notes, but other than the failure to bring the claim earlier, Defendant has pointed to nothing that suggests Plaintiff abandoned or forgot the earlier agreement.  The parties came to an agreement in the Worcester mediation.  This Court finds no evidence of any intention to abandon or waive the provisions of that contract.

CONCLUSION

            Accordingly, for the additional reasons stated above, it is this ___ day of July, 2011, by the Circuit Court for Calvert County, Maryland,

ORDERED, that this Court’s previous Order denying the Mediator’s Motion to Quash subpoena and subpoena duces tecum is hereby CONFIRMED; and it is further

ORDERED, that this Court’s previous ORDER granting to Plaintiff’s Motion to Compel Enforcement of Settlement Agreement is hereby CONFIRMED; and it is further

ORDERED, that this Court’s previous ORDER granting the Plaintiff’s Judgment for Divorce is hereby CONFIRMED.

 

 

 

 

____________________________________

Judge Steven I. Platt



[1] An interesting issue would arise if the response had been otherwise.  Would a mediator be negligent if faced with a party exhibiting behavior which evidences a lack of capacity to participate in the mediation, or appears to be under duress from a third party not present, and she fails to stop the mediation or at least inquire further of the party about her mental state?  


 

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