Get it in Writing: The Importance of a Signed Mediation Agreement
Fri, Dec 1st, 2023 | by Miles Mediation and Arbitration | Article | Social Share
The goal of mediation is to settle a claim or lawsuit. However, there is an important element of mediation that should never be overlooked — creating, and signing, the mediation agreement after the issues have been resolved by the parties. Let’s take a closer look at what your mediation agreement should include, and why it’s so important to “sign on the dotted line.”
When an Agreement is Not an Agreement
“Sign on the dotted line” is a directive lawyers have used for ages. Generally, no agreement is enforceable against a party who has not attested to it by his or her signature.
The law treats such an “agreement” as no agreement at all. Equity has carved out a few discrete exceptions to muddy these waters, but this general legal principle remains. In Mastec, Inc. v. Cue, 994 So. 2d 494 (Fla. 3rd DCA 2008), the parties brought their personal injury dispute to mediation. A $100,000 settlement “agreement” was apparently reached, but the defendant was unsuccessful in enforcing it. Why? As the court stated, “it is undisputed that the alleged mediation agreement was not reduced to writing and signed by the parties in accordance with Florida Rule of Civil Procedure 1.730(b).”
You may wonder why such an “agreement” was taken all the way to appeal. The written opinion is deficient in details but there are plenty of lines that one can read between. The primary argument of the defendant was that the missing signature of the plaintiff was a “technicality.”
This suggests that his was the only missing signature, that his lawyer and the defense representatives all signed on the dotted line at the conclusion of the mediation. There is no indication that the plaintiff was not present at the mediation, so it may be safe to presume that he was involved in the decision-making and the “agreement.”
If so, why did Mr. Cue did not sign the document? Perhaps he was appearing by telephone (this was in the pre-Zoom era) at the consent of the parties. Perhaps he had to leave after reaching the agreement in principle to attend to an emergency or another scheduled commitment. Perhaps he simply forgot.
These scenarios presume that there was truly an “agreement” that was not fully consummated by signing it. The opinion and enforcement efforts by Mastec give that clear implication.
Yet Mr. Cue apparently changed his mind and refused to sign off on his agreement. Again, one can speculate as to why. Perhaps he was talked out of it later by a spouse, relative or friend who was not present during the mediation conference (and thus was ignorant as to all the nuances of the claim). Perhaps he lost his job, had a sudden epiphany of wisdom, lost sight of all the problems in his case (i.e., reasons for agreeing to the settlement), etc.
Regardless of the reasons why Mr. Cue didn’t sign, as an attorney you cannot ignore the possibility that progress made during a mediation conference can be undone during periods of continuance or requests to have a few days to “think it over.”
The Mediation Agreement
Do not leave the drafting or signing of a mediation settlement agreement for another day.
If there is truly an agreement, memorialize it then and there. This is required under Florida law, per the Florida Rules of Civil Procedure 1.730(b), which provides in part “If a partial or final agreement is reached, it must be reduced to writing and signed by the parties and their counsel, if any. Signatures may be original, electronic, or facsimile and may be in counterparts. The agreement must be filed when required by law or with the parties’ consent. A report of the agreement must be submitted to the court or a stipulation of dismissal will be filed.”
Over the years, I have written a half-dozen articles about the importance of finishing mediations well – with a sufficiently complete, readily enforceable mediation settlement agreement.
The signature is perhaps the most important part. I urge you to politely but resolutely rebuff any request to allow any party to leave the mediation prior to crossing the finish line. These
requests may be sincere, genuine, and innocent. Yet, innocent beginnings do not always lead to peaceful, innocent endings.
For a mediation agreement to be enforceable, make sure that all parties “sign here, please.” Otherwise, your agreement may not be worth the paper on which it is written.
About Blane McCarthy
Blane McCarthy is a board-certified civil trial lawyer and a certified circuit mediator whose law practice is now limited to conducting mediations.
Current Practice = Full-Time Mediator: As a certified circuit mediator since 2000, Blane has conducted over 500 mediations, primarily for personal injury matters, commercial disputes, settlement conferences, and probate cases.