Lead Opinion
delivered the Opinion of the Court.
I. Introduction
We granted certiorari on two cases, Yaekle v. Andrews,
In the second case, Wade Chotvacs appeals the determination of the court of appeals in Chotvacs v. Lish, No. 05CA1369,
In both cases, the issue is whether section 13-22-8308 outlines the exclusive means by which parties can form a binding agreement reached after the parties have engaged in mediation. We hold that section 13-22-8308, the process provided by the Act for cementing an agreement as an order of court, is but one means by which parties can enforce a mediation agreement. However, we also hold that section 18-22-3807 protects as confidential certain "mediation communications," and thus bars the use of communications made in the presence or at the behest of the mediator as evidence of a binding contract. Regarding Yaekie, we conclude that the parties constructed a binding agreement at common law during their negotiations in the months following the mediation session. Regarding Chotvacs, we conclude no final agreement was reached during the mediation session, and none can be inferred from the admissible evidence of the later words and actions of the parties. Accordingly, we affirm the judgments of the court of appeals on separate grounds.
II. Facts and Procedural History
A. Yaekle v. Andrews
In early 2004 an ownership dispute erupted between Fred Yaekle, the plaintiff below, and William Andrews concerning their collectively owned company Creative Door Systems, Inc. A civil suit was initiated and, in September of that year, the parties agreed to conduct a private mediation at the Denver office of Judicial Arbitration and Mediation Services. After a half-day session with counsel for the parties in attendance, the mediator filled out a form outlining the "basic terms of settlement." The form (the "September agreement") was signed by both parties and stipulated that Andrews would pay Yaekle for his share of the company over a period of roughly ten months. Upon the final payment, the parties would drop their various claims against one another. Andrews's attorney was to draft "formal documents" for this agreement within fourteen days. The last line of the agreement read, "tlhe parties understand that this document is a binding enforceable agreement."
Andrews began making payments to Yae-kle, and the "formal documents" were drafted ("October documents"). However, the
Throughout the extensive discussions about these provisions, neither party noted that those provisions contained in the October documents arguably created a broader release for both parties than had been set out in the September agreement. The October documents maintained that each party would release the other "from any and all past, present or future claims ... known or unknown" that had or may have thereafter accrued against him. (Emphasis added). The September agreement merely provided for the mutual release of all claims that "could or did arise between the parties known" prior to the day it was signed. (Emphasis added). In the nine correspondences between counsel regarding the October documents, the apparent addition of liability release for yet unknown claims was not mentioned by either party. In December, Andrews's attorney sent a revised settlement agreement to Yaekle's attorney containing all of the revisions Yaekle had demanded; namely, settlement documents containing identical release provisions for the two parties ("December agreement").
Around the same time, Andrews initiated a criminal investigation against Yaekle, which culminated in Yaekle's arrest in January 2005.
In January, the trial court overseeing the pending civil suit issued a Notice of Dismissal for Failure to Prosecute. Yaekle responded with a Notice of Pending Settlement in which he stated, "[the parties finally reached an agreement concerning the acceptable content and terminology to be set forth in the settlement documents. [Andrews] submitted a final Settlement Agreement and Mutual Release [in December]." However, Yaekle's counsel asked for more time to evaluate the agreement in light of Yaekle's arrest, which the trial court granted.
After several more delays and further threats by the trial court to dismiss the case, Andrews moved for "judicial enforcement" of the December agreement. Yackle countered with a request that the September agreement be enforced, arguing the December agreement was unenforceable in spite of his earlier assertion to the court that it was a "final" agreement. After considering the lengthy negotiations between counsel concerning the December agreement, the trial court found that the parties had agreed to and were now bound by its terms, and granted Andrews's motion.
The court of appeals affirmed the order after determining that the requirements of the Dispute Resolution Act had been met for judicial enforcement of a settlement agreement.
B. Chotvacs v. Lish
Wade Chotvacs engaged in litigation with Lish concerning an casement that gave him access across Lish's property. The trial court ordered the parties to attempt mediation. After a thirteen-hour mediation session led by an attorney-mediator, the parties allegedly reached an agreement. The mediator drafted two pages of handwritten notes that outlined the terms of a proposed settlement. The document was not signed by the parties or their attorneys.
Relying on court of appeals precedent, which required that the agreement arising from mediation be signed by both parties in order to be enforceable by a court, the trial court issued a judgment on the pleadings in favor of Lish as per Colorado Rule of Civil Procedure Rule 12(b)@8). The court of appeals affirmed in an unpublished opinion.
III. The Dispute Resolution Act
The Dispute Resolution Act structures efforts to resolve disputes through mediation rather than litigation. See §§ 18-22-8301 to - 318. Two provisions of the Act are of special importance here.
The first of these, section 18-22-807 ("seetion 807"), protects all mediation communications as confidential. "Mediation communications" are in turn defined as "any oral or written communication prepared or expressed for the purposes of, in the course of, or pursuant to, any mediation services proceeding." § 13-22-802(2.5), CRS. (2008). Explicitly excepted from this definition are written agreements to enter into mediation and any "final written agreement ... which has been fully executed." Id. Importantly, protected mediation communications are generally inadmissible as evidence in later judicial proceedings. See § 13-22-3078), C.R.S. (2008).
The second provision of special concern here is section 18-22-8308(1) ("section 808"), which outlines a process by which parties can turn an agreement reached during mediation into an enforceable court order. Specifically, section 308 states:
If the parties involved in a dispute reach a full or partial agreement, the agreement upon request of the parties shall be reduced to writing and approved by the parties and their attorneys, if any. If reduced to writing and signed by the parties, the agreement may be presented to the court by any party or their attorneys, if any, as a stipulation and, if approved by the court, shall be enforceable as an order of the court.
Under this section, parties can turn an agreement reached during mediation into an enforceable court order after reducing it to writing, signing it, and submitting it as a stipulation to the court for its approval. See id.
Based on these two provisions, Yaekle and Lish argue that the Dispute Resolution Act abrogates the common law of contracts in the context of mediation proceedings and puts section 308 in its stead. Under their view, the only way for parties to reach a binding agreement in mediation is to follow those steps set out in section 308. We disagree.
IV. Analysis
We have not before considered whether section 308 establishes the exclusive method by which parties can arrive at a binding agreement through mediation. However, the court of appeals faced this issue in National Union Fire Ins. Co. of Pittsburgh v. Price,
However, the court of appeals did not consider the impact such an interpretation of the Dispute Resolution Act had on the common law. By reading section 808 to be exclusive, the court of appeals in Price suspended the operation of common law contract principles while parties are engaged in mediation. Significant among those methods excluded by implication under the reading set out in Price are common law contract principles that allow for the formation of contracts without the signatures of the parties bound by them. See, eg., I.M.A., Inc. v. Rocky Mountain Airways, Inc.,
This court has previously considered what it takes for a statute to effect such an abrogation of the common law. "[A)s a matter of statutory interpretation, changes in the common law ... will be recognized only when they are expressly mandated or necessarily implied by subsequent legislation." Clancy Sys. Int'l, Inc. v. Salazar,
Nowhere in the Act did the General Assembly express its intent to abrogate the common law of contracts during mediation proceedings. See §§ 183-22-801 to -318. The Act's silence on this matter weighs against Yaekle's and Lish's conclusion and in favor of leaving the common law of contracts intact.
Nor is the abrogation of common law contract principles the necessary implication of the statute's provisions; rather, the language of the statute urges quite the contrary. Cf. Clancy Sys. Int'l,
Turning first to section 308, the language of the provision indicates the common law of contracts was intended to remain in effect in a number of ways. As an initial observation, the language of section 8308 is riddled with conditionals: "If reduced to writing ... the agreement may be presented to the court, . and, if approved, ... it shall be enforceable as an order of the court." § 13-22-8308 (emphasis added). The voluntary nature of the procedure outlined in section 808 indicates that the General Assembly anticipated there would be other ways to resolve mediated disputes. It did not mandate a single method that must be followed for the formation of a binding agreement onee mediation has begun.
More importantly, the language of the statute is very precise: section 308 only provides a method for directly converting an agreement into one that is "enforceable as an order of court." (Emphasis added). It does not address the methods required for forming those agreements. Contrary to the canons of statutory construction, Yaekle's argument ignores this last phrase in the provision. See Cacioppo v. Eagle County Sch. Dist. Re-50J,
Often, parties to binding agreements do not seek court enforcement of the agreement at all, and may come to court only disputing whether the contract has been breached or the damages for a breach. A statutory provision specifically providing for an enforcement mechanism, and not addressing common law contract formation, does not prevent parties from reaching a binding agreement in the absence of court enforcement. As we read it, section 308 was not meant to limit the ways by which parties may form a binding agreement. Rather, it extends those benefits afforded parties who have litigated an issue to those who have resolved an issue through mediation. Thus, the whole of section 308 merely provides a method of turning an agreement into an order of court; it does not speak to or limit the ways in which a binding agreement can be formed.
Therefore, the language of section 808 militates against the conclusion that the Act abrogates the common law of contracts in the context of mediation proceedings. It neither expressly mandates the abrogation of the common law, nor necessarily implies such a consequence. Indeed, the language appears to contemplate other methods of forming a binding agreement. As such, insofar as its reasoning is inconsistent with this opinion, we now disapprove of Price.
As Yackle and Lish see it, without access to mediation communications, there is nothing from which a common law contract may be substantiated. They conceive of "mediation communications" as covering all those words and actions of the parties that might be used in court to show that a binding contract has been formulated. Indeed, the parties imply that, so sweeping is the confidentiality provided by section 307, a mediated dispute could not produce an agreement binding on the parties without executing the process outlined in section 308.
However, this argument reads the definition of "mediation communication" too broadly. Section 13-22-802(2.5) defines "mediation communication" as
any oral or written communication prepared or expressed for the purposes of, in the course of, or pursuant to, any mediation services proceeding or dispute resolution proceeding, including, but not limited to, any memoranda, notes, records, or work product of a mediator, mediation organization, or party.
(Emphasis added). This definition covers only those communications expressed "for the purposes of, in the course of, or pursuant to" specific mediation proceedings. Id. Black's Law Dictionary defines "proceeding" as, tnter alia, "[the business conducted by a court or other official body; a hearing." Black's Law Dictionary 1241 (8th ed.2004) (emphasis added); see also Black's Law Dictionary 45 (8th ed.2004) (defining "adjudicatory proceeding" in reference to "adjudicatory hearing"). The Act's definition of "mediation communication" is therefore careful not to extend to all communications that may in some way or another be related to the mediation; the definition does not cover all communications made with an eye to resolving the dispute once parties have agreed to mediation. Rather, "mediation communications" are limited to those made in the presence or at the behest of the mediator. Thus, section 307 does not, as the parties contend, wholly rob common law contract principles of anything on which to operate. Communications or negotiations that concern the dispute but are not connected to specific mediation services proceedings are not contemplated by the definition of "mediation communication" and therefore are not protected as confidential under section 307.
In sum, section 307 of the Dispute Resolution Act protects as confidential those communications made in the presence or at the behest of the mediator, and so may hinder the efficacy of common law contract principles in some circumstances. It does not, however, abrogate those principles entirely. We understand section 307 as protecting the mediation process by its imposition of confidentiality. By protecting mediation communications as confidential, section 307 encourages open and productive negotiation during mediation. Furthermore, section 807 sets out a test for determining the Act's scope through its evidentiary constraints. Thus it is section 807-and not section 808-that dictates the scope of the Act and guides the determination of whether an agreement has been formed and can be enforced within the context of mediation. Section 808 of the Act provides parties engaging in mediation with a method for turning a mediated settlement agreement into an order of court, but does not outline the only way by which a binding agreement can be formed. The Act facilitates alternate dispute resolution without throwing out those methods that allow parties to establish enforceable settlements at common law.
V. Application
A. Yaekle v. Andrews
Because Yaekle and Andrews did not submit a signed, written agreement to the court pursuant to section 308, we must assess whether the parties have presented any evidence of contract formation that is not protected by the confidentiality provisions of section 307.
When making its determination on the issue of contract formation, the trial court considered the September agreement and the subsequent negotiations between counsel up to and including the December agreement. It also considered other words and actions of the parties, including their representations to the court. We conclude that all of these were properly before the court and unprotected by section 307 of the Act.
The September agreement was signed by both parties and their lawyers at the conclusion of the half-day mediation session. The September agreement was understood by the parties as a binding and enforceable agreement, as evinced by the document's own provisions and the later representations to the court of both parties. It therefore satisfies the "final written document" exception to mediation communications, and so is not protected by the Act's confidentiality provision. §§ 18-22-302(2.5), 13-22-807(2). Thus, that document was properly before the court, and supplies pri-ma facie evidence of contract formation.
The October documents were drafted at the behest of the mediator, as stipulated in the September agreement, and so were made "pursuant to" a mediation services proceeding. § 13-22-802(2.5). Had the October documents been themselves fully executed, they would have taken the place of the September agreement as the final written agreement. Thus they would have been admissible under the exception to the mediation communication definition as evidence of contract formation. As it is, though, the October documents are confidential mediation communications not to be contemplated by courts.
However, the subsequent communications and negotiations concerning the October documents were not protected by section 307, as they did not constitute mediation communications as the Act defines that term.
Having determined none of the communications between counsel after the mediation session in September enjoy the confidentiality provided by section 307, we now consider whether the December agreement binds the parties. A court may only enforce a settlement agreement if it constitutes an enforceable contract. See H.W. Houston Constr. Co.,
Here, the trial court concluded, after properly considering all the communications presented to it, that the parties had entered into a subsequent agreement regarding the dispute's settlement by way of the December agreement. The trial court found, and the record supports:
(1) the parties agreed to the language in the December agreement which differed from that indicated by the September agreement: Andrews's counsel drafted the language, and Yaekle's twice insisted it be included in additional places in the documents.
(2) the contested language was included in the release verbatim at Yackle's urging.
(8) the agreement was sent to Yackle in December and thereafter was not contested.
(4) in January, Yaekle represented to the court that the "parties finally reached an agreement concerning the acceptable content and terminology to be set forth in the settlement documents."
(5) in February, Yackle acknowledged that the parties had entered into a Stipulation for Resolution, but indicated the parties might need to renegotiate the agreement due to Yaekle's arrest.
These findings, which we see no reason to upset, support the trial court's and court of appeals' conclusion that the December agreement constitutes a contract by which the parties are bound and that a court can enforce. The terms of the contract are unambiguous, were negotiated by the parties, and the contract offered by Andrews followed every one of Yaekle's requirements. Yackle accepted the offer, as clearly shown through his counsel's representations to the court. See Scoular Co. v. Denney,
For the foregoing reasons, we affirm the order of the court of appeals.
As with the dispute between Yackle and Andrews, the requirements of section 308 were not satisfied during the mediation between Chotvacs and Lish. The alleged agreement, while reduced to writing, was neither signed by the parties nor presented to a court as a stipulation. Having thus established the alleged agreement is not enforceable as an order of court under section 308, the question becomes whether it is enforceable at all as a contract for settlement.
The alleged agreement between Chotvacs and Lish was outlined by the attorney mediator at the conclusion of a thirteen-hour mediation session. As it was expressed "in the course of ... a mediation services proceeding," § 18-22-802(2.5), it is protected as a confidential mediation communication under section 307 of the Act unless one of the express exceptions to the mediation communication definition applies.
Nothing about the document suggests the parties thought it a binding agreement. Neither the parties nor their attorneys signed the document, and no provision in the document suggests that it is final or intended to be immediately implemented. As such, unlike the September agreement between Yae-kle and Andrews, the document here does not satisfy the exception made for final, written, fully executed agreements provided for in section 18-22-802(2.5). It therefore remains protected as confidential under section 307 of the Dispute Resolution Act.
Absent that document, we are left with a slim record on which to perform a common law contract analysis.
VI. Conclusion
We hold that section 18-22-808 is not the exclusive means by which parties can form a binding agreement reached after mediation, but that section 13-22-307 protects as confidential those communications made in the presence or at the behest of the mediator. Thus, while common law contract principles are not suspended from operation during mediation, the evidence of contract formation during mediation other than final written and fully executed agreements is generally inadmissible.
Accordingly, the judgments of the court of appeals are AFFIRMED on other grounds.
Notes
. In Yaekle v. Andrews, we granted certiorari on two issues:
1. Whether the Dispute Resolution Act, section 13-22-301 et seq., C.R.S. (2007) (the "Act"), requires that a settlement agreement reached through mediation be in writing and signed by all parties in order to be enforceable.
2. Whether the Dispute Resolution Act controls the enforceability of a settlement agreement formed by the parties' actions subsequent to mediation or whether courts can rely on common law contract formation principles to enforce such an agreement.
In Chotvacs v. Lish, we granted certiorari on one issue:
*1104 Whether the Dispute Resolution Act, sections 13-22-301 to 13-22-313, C.R.S. (2007), requires that a settlement agreement reached through mediation be in writing and signed by all the parties in order to be enforceable.
While both these issues focus on the 2007 statute, the provisions remain unchanged in 2008.
. Andrews alleged that Yaekle stole from the company by running a "secret and unlawful business."
. We granted certiorari on Price in order to review many of the same issues presented by the two instant cases; however, the case was settled before it reached us and the appeal was dismissed. See No. 03SCS527 (Colo. Nov.17, 2003) (granting certiorari).
. Prior to 1991 amendments to the Act, the process outlined by section 308 was compulsory on the parties if they indeed reached an agreement in mediation. See § 13-22-308, C.R.S. (1983). Even under the former statutory language, though, our interpretation would be no different. The specificity of the section and the circumstance it considers weigh against understanding it as a restraint on contract formation.
. While we here disagree with the reasoning in Price regarding the Dispute Resolution Act, our understanding of the statute would have likely led to the same result in that case, as the analysis would closely track that set out in the discussion
. Section 13-22-307 states, in pertinent part:
(2) Any party or the mediator or mediation organization in a mediation service proceeding or a dispute resolution proceeding shall not voluntarily disclose or through discovery or compulsory process be required to disclose any information concerning any mediation communication or any communication provided in confidence to the mediator or a mediation organization, unless and to the extent that:
(a) All parties to the dispute resolution proceeding and the mediator consent in writing; or
(b) The mediation communication reveals the intent to commit a felony, inflict bodily harm, or threaten the safety of a child under the age of eighteen years; or
(c) The mediation communication is required by statute to be made public; or
(d) Disclosure of the mediation communication is necessary and relevant to an action alleging willful or wanton misconduct of the mediator or mediation organization.
. Among other things, this reading ensures that a party may not enter into a common law settlement contract outside an ongoing mediation in an attempt to escape its costs, and later be protected by the Act's confidentiality provisions by successfully arguing that no side agreement existed, or at least none that a court could consider. Thus, the open mediation negotiations the Act seeks to protect cannot be manipulated
. Chotvacs insists that his allegation of an enforceable contract is sufficient to overcome the judgment on the pleadings under CRCP. 12(b)(3), from which he now appeals. However, a 12(b)(3) motion is one that calls for the resolution of a legal question when there is no dispute concerning material facts. Here, all parties agree about the timeline of the dispute and the substance of the mediator's written notes regarding the proposed settlement. From the stipulated facts we turn to consider the legal question of contract formation, the determination of which is unswayed by his insistence that the agreement is binding.
. While the discussions below primarily focused on Price's impact on the dispute, all parties were aware of that case's vulnerability to alteration by this court. Nonetheless, no other evidence was put forward by Chotvacs to support the enforce» ability of the alleged contract, nor was there any offer for such proof.
Concurrence Opinion
concurring in the judgment.
While I agree with the majority that there is an enforceable agreement in Yaekle but not in Chotvacs, I disagree with its conclu
At issue in this case is the meaning of section 308(1), which provides that "[i]f reduced to writing and signed by the parties, the agreement [reached in mediation] may be presented to the court by any party ... and, if approved by the court, shall be enforceable as an order of the court." Thus, an agreement reached in mediation is "enforceable as an order of the court" only if it is (1) in writing; (2) signed by the parties; (8) presented to the court; and (4) approved by the court. These statutory requirements set forth by the legislature are clear and straightforward; without them, a settlement reached through mediation is not "enforceable as an order of the court." Although the majority dismisses the statutory requirements as "formulaic," maj. op. at 1107, and expresses its preference for the more "sensitive" common law rule that recognizes oral agreements, id., it is the legislature's call on the issue, not ours, that must prevail. Seq e.g., Clancy Sys. v. Salazar,
The majority avoids the statutory language by suggesting that the legislature just was not clear enough. Maj. op. at 1107. According to the majority, "before accepting the conclusion that the common law of contracts is suspended when parties enter mediation, we must find either express intent to that end on behalf of the General Assembly or necessity in the language of the provisions." Id. at 1107. In my view, section 808 satisfies this standard by setting forth the requirements that an agreement be reduced to writing and signed by the parties before it can be enforced by court order. In the face of this statutory language, the majority states that the Act is "silen[t] on this matter." Id. The only thing it could mean by this statement is that the legislature, in order to depart from the common law, would have to state that the writing and signature requirements exclude oral agreements otherwise recognized at common law. But such language would simply be redundant of what is already there. Moreover, we have never required such precision from the legislature. See, eg., Leader Fed. Bank for Sav. v. Saunders,
The majority's focus on the "voluntary nature of the procedure" is similarly misplaced. Maj. op. at 1108. The majority notes that under section 308, an agreement reached in mediation "may" be presented to the court "if" it is reduced to writing and signed by the parties. The majority mistakenly concludes from this language that "the General Assembly anticipated there would be other ways to resolve mediated disputes"-that is, through oral agreements. Id. Yet what is voluntary about the language is not, as the majority suggests, whether the prerequisites to enforcing an agreement reached in mediation by court order must be complied with. They must be. Instead, what is voluntary is whether the parties want to seek judicial enforcement of the written and signed agreement in the first place. In other words, the parties "may" choose to seek judicial enforcement of their agreement; if they do, they must abide by the statutory requirements.
If the parties involved in a dispute reach an agreement, the agreement shall be reduced to writing and approved by the parties and their attorneys and shall be presented to the court as a stipulation and, if approved by the court, shall be enforceable as an order of the court.
§ 13-22-8308, C.R.S. (1983) (emphasis added). The 1991 amendments to the Act, which brought section 808 to its current version, made two significant changes to the language pertinent to this case. § 18-22-808, C.R.S. (1991). First, the parties were relieved of the mandatory obligation to reduce the oral agreement to writing and approve it. Thus, under the current version, the oral agreement "shall be reduced to writing and approved by the parties and their attorneys" only "wpon request of the parties." Second, the parties were relieved of the mandatory obligation to present the written agreement to the court. Under the current language, the oral agreement, "[ilf reduced to writing and signed by the parties, may be presented to the court ...." But nothing in the 1991 amendments relieved the parties of the mandatory obligation to reduce the agreement to writing if they seek court enforcement.
Under my interpretation of section 308, there is no enforceable agreement in Chot-vacs because the agreement reached in mediation, if any, was not reduced to writing, signed by the parties, or presented to the court.
While the majority downplays the importance that section 808 has on this case, it reaches the same result by focusing on section 307, which governs confidential mediation communication. As the majority recognizes, under section 307, there is no enforceable agreement in Chotvacs because the basis of Chotvaes's claim is communication that was "expressed in the course of . a mediation services proceeding" and is thus confidential § 18-22-302(25); maj. op. at 1112. The December agreement in Yaekle is enforceable, the majority concludes, because the negotiations were not conducted in connection with mediation, and therefore the communication between the parties is not confidential. Maj. op. at 1111. I agree with the majority's section 307 analysis. However, the majority's singular focus on section 307 causes it to miss an important point-namely, that section 807 reinforces section 808's requirements that the agreement be in writing and signed by the parties In other words, sections 8307 and 308 are coextensive and mutually reinforcing.
Section 807 provides that "mediation communication" is confidential and can only be
Sections 307 and 808 are directed to the same end: to encourage open and candid discussion by the parties in an informal setting. See § 18-22-805(1) (directing the office of dispute resolution to establish rules "designed to establish a simple nonadversary format for the resolution of disputes by neutral mediators in an informal setting for the purpose of allowing each participant, on a voluntary basis, to define and articulate the participant's particular problem for the possible resolution of such dispute"). Section 307 promotes this goal by ensuring that mediation communications are not divulged to others. Section 808 promotes this goal by ensuring that those communications are not binding until the parties reduce their agreement to writing and sign on the dotted line. See, e.g., Reese v. Tingey Constr.,
Given that analysis of this case under either section 807 or 808 leads to the same result, the question remains why it matters which course the majority takes today. The majority's rationale may not make a difference in the outcome of this case, but it will have a serious negative impact on mediation more generally. By holding that an oral agreement reached in mediation is enforceable even though it does not meet the requirements of section 8308, the majority needlessly chills the candid and informal character of mediation discussion and reduces the efficacy of mediation as a dispute resolution tool-all in contradiction to the Act. For these reasons, I respectfully concur only in the result that the majority reaches.
I am authorized to state that CHIEF JUSTICE MULLARKEY joins in this concurrence.
. The majority describes the agreement as follows: "At the end of the mediation session, the mediator outlined the terms of an apparent agreement between the parties, but neither party signed the agreement." Maj. op. at 1104. Although the majority later suggests that the agreement was "reduced to writing," maj. op. at 1112, it states that "[nlothing about the document suggests the parties thought it a binding agreement." Maj. op. at 1112. In my view, that "agreement" was nothing more than a statement of principles outlining the parties' respective understandings of their properties. So, although this statement was "reduced to writing," it was never an "agreement," let alone a signed, binding one.