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Na v. Gillespie

Court of Special Appeals of Maryland

December 1, 2017

SANG HO NA
v.
MALINDA GILLESPIE

         Circuit Court for Howard County Case No. 13-C-15-105803

          Meredith, Berger, Friedman, JJ.

          OPINION

          Friedman, J.

         This appeal concerns the circuit court's denial of Sang Ho Na's Motion to Enforce Mediated Settlement Agreement following the parties' voluntary, private mediation to determine custody of their daughter. Na argues that the circuit court erred when it denied his Motion to Enforce Mediated Settlement Agreement. Additionally, Na argues that the circuit court erred by ordering him to pay $85, 000 in attorney's fees to Malinda Gillespie, and in awarding primary physical custody to Gillespie with visitation to Na.

         For the reasons that follow, we affirm the circuit court.

         FACTUAL AND PROCEDURAL BACKGROUND

         Na and Gillespie are the unmarried parents of a daughter, born in July 2014. Na regularly visited the child, but she resided exclusively with Gillespie until November 20, 2015, when Na filed a Complaint for Custody and Other Relief in the Circuit Court for Howard County. Gillespie counterclaimed for custody, and on December 1, 2015 she filed a Request for Emergency Ex Parte Relief. An emergency pendente lite hearing was held that resulted in a temporary order granting joint legal custody to the parties with primary physical custody to Gillespie and visitation to Na until a full merits hearing could be held. Prior to the merits hearing, the parties attended voluntary, private mediation. On the day of mediation, the parties, their counsel, and the mediator signed an Agreement to Mediate, by which they agreed to maintain the confidentiality of statements made and documents created during the mediation. The parties then proceeded with approximately nine hours of mediation. Meanwhile, outside, a snowstorm developed. Due to the snow, the parties ended their mediation session without reducing any agreed-upon terms to writing. It is undisputed that counsel for both parties agreed to work toward drafting an outline of the various terms discussed during the mediation with the ultimate goal of submitting a consent order to the court. The parties disagree, however, on the extent to which any final agreement was reached on all of the disputed issues.

         In the days following mediation, counsel for the parties exchanged a number of emails regarding the preparation of a final written order. In her emails to Na's counsel, Gillespie's counsel maintained the position that the parties had not "close[d] the loop on all items" and that the terms needed "some more specificity." Na's counsel, however, believed that the parties had reached a binding, enforceable settlement agreement during mediation. Ultimately, counsel exchanged contrasting drafts, but the parties were unable to agree on a final consent order. Due to these continued disagreements, Na filed a Motion to Enforce Mediated Settlement Agreement ("Motion to Enforce"), which Gillespie moved to dismiss.[1]

         On April 26, 2016, the Circuit Court for Howard County held a hearing on the Motion to Enforce, and both sides gave oral argument regarding whether the parties had reached a binding, oral settlement agreement during mediation. Na also sought to introduce documents and testimony from the attorneys and the mediator who participated in the mediation to prove the existence, and the terms, of the parties' alleged settlement agreement. Gillespie's counsel objected, arguing that the confidential nature of the mediation barred any evidence of statements or documents made during the conference. The circuit court agreed with Gillespie, stating:

One of the fundamental principles that makes mediation work is the concept of confidentiality [-] that I can say anything in my mediation with my opponent and it can't be used against me in court … [t]hese parties walked into that mediation with that expectation … I find that anything that came out of the mediation that was not a written agreement is inadmissible and therefore I have to grant the motion to dismiss.

         The circuit court found that the Agreement to Mediate prohibited any discussion of the contents of mediation, and therefore the evidence Na wished to present was inadmissible. As a result, the court denied Na's Motion to Enforce.

         The court then held a three-day merits hearing, at the end of which it awarded the parties joint legal custody and primary physical custody to Gillespie with visitation to Na. The circuit court also ordered Na to pay $85, 000 of Gillespie's attorney's fees. Na timely noted this appeal.

         DISCUSSION

         I. Denial of the Motion to Enforce Mediated ...


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