ORDER ON PENDING MOTIONS
Matthew Eastwick's Motion to Confirm Binding Arbitration
Award and Respondent Cate Street Capital, Inc.'s Motion
to Vacate are both before the court, as is Movant's
Motion for Attachment and Attachment Upon Trustee Process.
Oral argument was held January 5, 2017, after which the court
took the motions under advisement.
pertinent factual background is as follows:
Eastwick was employed by Respondent Cate Street Capital, Inc.
["Cate Street"] from 2010 until February 2016 under
an employment agreement that included the following dispute
In the event any dispute arises between the parties to this
Agreement, the matter shall be submitted promptly to
mediation. In the event that mediation is unsuccessful, the
dispute shall be submitted for arbitration in accordance with
the rule [sic] of the American Arbitration Association.
Nov. 7, 2016 Affidavit of Robert Desrosiers ¶3.
dispute arose under the employment agreement after Mr.
Eastwick had left Cate Street's employ, and, consistent
with the provision, the parties selected Patrick Coughlan of
the Conflict Solutions firm as a mediator. A mediation
session occurred July 27, 2016 and the parties reached a
settlement of their dispute. To memorialize the settlement,
the parties signed a Memorandum of Understanding [hereinafter
"the MOU"], providing in part as follows:
• termination of the employment agreement between the
• an exchange of releases in "standard terms"
covering all claims between the parties and also providing
• payment by Cate Street to Mr. Eastwick of $100, 000
within 30 days of the effective date of the release and $15,
000 per quarter for 10 quarters beginning January 15, 2017
• a provision authorizing Mr. Eastwick, if Cate Street
failed to make a quarterly payment within 30 days of a
demand, to "file a stipulated judgment for the
outstanding amount due to him."
• a provision as follows: "Any disputes that may
arise during the drafting and execution of the settlement
shall be submitted to Patrick Coughlan for review and
resolution." Exhibit A to Affidavit of Matthew Eastwick
in support of Movant's Motion for Attachment and
Attachment on Trustee Process.
does not use the words "arbitrate" or
"arbitrator" to describe Mr. Coughlan's role in
reviewing and resolving disputes, and according to Cate there
was never any mention on July 27, 2016 of Mr. Coughlan
serving as an arbitrator. Nov. 7, 2016 Affidavit of Robert
the July 27, 2016 mediation, counsel for the parties
negotiated the terms of the releases and other aspects of the
settlement contemplated in the MOU. According to Movant
Eastwick, those negotiations produced a written settlement
agreement that included releases and the other components of
the MOU and that counsel for both parties believed was
satisfactory to both parties. See Exhibit C to
Affidavit of Matthew Eastwick in support of Movant's
Motion for Attachment and Attachment on Trustee Process
(Decision Ex. B-Confidential Settlement Agreement and Mutual
Release of Claims). Mr. Eastwick signed it August 30, 2016,
and he claims that Cate Street simply refused to sign it, for
what later appeared to be financial reasons.
Street's response is that it refused to sign the
Confidential Settlement Agreement and Mutual Release of
Claims because it improperly added to the terms of the MOU by
including an acceleration provision to the settlement
agreement, a contention Movant denies.
event, the parties and/or their counsel returned to Mr.
Coughlan on October 11, 2016. The notices sent by Mr.
Coughlan's office ahead of that meeting refer to it as a
"post mediation meeting." See Nov. 7, 2016
Affidavit of Robert Desrosiers, Ex. B (Conflict Solutions
email and letter dated Sept. 26, 2016).
the day before the October 11, 2016 meeting, Mr.
Eastwick's counsel sent Mr. Coughlan, with a copy to Cate
Street's counsel, a letter enclosing Mr. Eastwick's
-"proposed exhibits" and a "proposed
order" that clearly put Cate Street on notice that Mr.
Eastwick viewed the "post mediation meeting" as an
arbitration. Nov. 7, 2016 Affidavit of Robert Desrosiers
¶11, Ex. C (October 10, 2016 Letter from Melissa Hewey,
Esq. to Patrick Coughlan with attachments). The attachments
to attorney Hewey's letter included a draft Decision
reciting that it was enforceable as an arbitration award.
See id. (Decision draft, Conclusions of Law ¶
is no transcript of the October 11, 2016 meeting but there
seems to be no question that the participants and Mr.
Coughlan discussed the disputes regarding the settlement that
had arisen since the July 27, 2016 mediation. According to
the Movant's reply memorandum, Mr. Coughlan attempted to
mediate the disputes before ultimately signing the proposed
Decision that Mr. Eastwick's counsel had forwarded the
day before. Although Movant Eastwick suggests that Cate
Street waived any objection to the Coughlan Decision, it
appears that Cate Street objected to the October 11, 2016
meeting as being anything other than a further mediation
session and filed a written objection to the Decision.
Coughlan issuing a document titled Decision and dated October
11, 2016, containing findings of fact and conclusions of law,
and adopting the Confidential Settlement Agreement and Mutual
Release drafted by Movant's counsel and previously signed
by him, as reflecting the terms of the settlement the parties
had reached July 27, 2016.
Eastwick commenced this action by filing a Motion to Confirm
Binding Arbitration Award pursuant to the Maine Arbitration
Act ["the Act"], 14 M.R.S. § 5937. Cate Street
responded with a Motion to Vacate pursuant to section
59S8(1)(E) of the Act, based on its contention that the
parties never agreed to arbitrate the issues covered in the
primary issue raised in the parties' cross-motions is
whether the parties agreed that Mr. Coughlan would arbitrate
any issues arising out of the MOU.
Eastwick contends that the provision empowering Mr. Coughlan
to resolve any disputes arising out of the drafting and
execution of the parties' settlement was, in substance,
an arbitration agreement. Mr. Eastwick also points out that
the parties returned to Mr. Coughlan in October, knowing that