Mediation – Buyer’s remorse may work at Target, but don’t expect it to work in court

By Blane McCarthy, Jacksonville Bar Association Board of Governors
Published in the February 2018 Jacksonville Bar Bulletin
February 5, 2018 issue of the Financial News & Daily Record
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This is the time of year when many people grapple with buyer’s remorse. Credit card statements have landed by now, revealing many Christmas/holiday purchase decisions that now seem unnecessary, excessive and regrettable.

In our capitalistic society, sellers are pursuing competitive advantages based on how they respond to buyer’s remorse. Retailers are enacting increasingly liberal return policies that allow more purchases to be undone for little to no reason over longer and longer periods of time. Online sellers offer prepaid shipping labels to facilitate easy returns, lest you abandon that seller and revert to shopping at your local “brick and mortar” store.

Statutes in Florida and other states mandate “safe haven” cancellation provisions in many consumer contracts. In fact, there is a strong likelihood that your own legal representation contract has a 3-day cancellation clause.

As a result, today’s consumers have been trained to believe they have a right to cancel a prior decision and suffer no consequence. “Buyer’s remorse” now serves as justification for a corrective action, and is no longer simply the permanent consequence of a questionable decision. This is perhaps why caselaw continues to revisit the issue in the context of mediated settlement agreements.

In Pierce v. Pierce (In Re: Estate of Pierce), 128 So. 3d 204 (Fla. 1st DCA 2013), sisters decided to mediate their ongoing bitter will contest over their mother’s estate. The mediation started on a Friday morning and lasted into the evening hours. (As an aside, I learned this lesson the hard way in the first probate case I mediated. They never finish in a half-day so I never set one to start any later than mid-morning.)

As the terms of a final agreement were being hashed out, one of the parties requested that both parties been given the weekend to further reflect on the matter. After that request was denied and despite fatigue, both parties executed a Mediated Settlement Agreement.

The appellee soon regretted signing the document and returned to the mediators’ office the very next morning with a written request to rescind the agreement. Upon learning that the mediator has no such power, appellee successfully moved the trial court to deem the agreement unenforceable.

The First District Court of Appeals reversed, stating, “As a general rule, the standard for disregarding a settlement agreement between parties is high and the fact that one party to the agreement apparently made a bad bargain is not a sufficient ground, by itself, to vacate or modify a settlement agreement.” (internal citations omitted). Mediated Settlement Agreements are challengeable based on evidence of fraud, coercion, or misrepresentation. Where the evidence merely shows that a party, upon further reflection, feels the terms are not in her or her best interest, the legal challenge fails. “Buyer’s remorse is not a sufficient basis for overturning a settlement agreement freely and voluntarily entered into.”

This should seem a rather obvious conclusion to you. Be advised that it may not be an obvious conclusion to your client, who has undoubtedly been trained to question the finality of any decision. Take care to ensure that your client realizes that if he or she signs a Mediation Settlement Agreement, he or she will be stuck with that deal, permanently (barring truly exceptional circumstances).

Amazon, Target and other retailers aim to ease the pain of buyer’s remorse by allowing consumers easy paths to essentially undo their decisions. The law is not so capitalistic, or kind, in nature. There are legal bases to cancel Mediated Settlement Agreements, but buyer’s remorse is not one of them.