ADR CORNER
To Sign or Not to Sign – There Shouldn ’ t Be Any Question
ADAM MYRON
“ Really ? I didn ’ t know that ” is a common refrain I hear at the end of court-ordered mediation - a time when surprise is the last emotion I , as the mediator , want to elicit . And yet , it ’ s the response I often get after informing attorneys that they , as well as their clients , are required to sign mediated settlement agreements . ( I imagine more than half the readers of this article are having a similar reaction right now .) Whether or not you think the rule makes sense , it ’ s true : settlement agreements arising out of court-ordered mediations must be executed by the parties and their counsel ; and there are many excellent reasons that attorneys should do so even if they regard it as superfluous .
First and foremost , the rules require it . Specifically , Rule 1.730 ( b ) provides that “[ i ] f a partial or final agreement is reached , it must be reduced to writing and signed by the parties and their counsel , if any .” As lawyers , the Rules Regulating the Florida Bar prohibit us from “ knowingly disobey [ ing ] an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists .” R . Reg . Fla . Bar . 4-3.4 .
Second , Rule 1.730 requires that a mediator report to the court whether or not an agreement has been reached and mandates that “[ n ] o partial or final agreement under this rule may be reported to the court except as provided ” in 1.730 ( b ). Id . Because Rule 1.730 ( b ) requires the parties and their counsel to sign an agreement , a mediator cannot report the existence of an agreement unless that requirement has been met . Florida ’ s Mediator Ethics Advisory Committee ( MEAC ) weighed in on the ethical obligations of certified mediators in this regard , writing in MEAC Opinion 2012-09 that “[ b ] oth the Florida Rules of Civil Procedure and the Florida Family Law Rules of Procedure require that an agreement be in writing and signed by the parties ( and their counsel , if any ), in order to constitute an agreement . Without meeting these requirements , there is no agreement .”
Third , Rule 1.730 ( c ) provides that “[ i ] n the event of any breach or failure to perform under the agreement , the court upon motion may impose sanctions , including costs , attorneys ’ fees , or other appropriate remedies including entry of judgment on the agreement .” Id . If the attorneys did not sign a settlement agreement that a party later claims was breached , the court will not have the “ teeth ” of Rule 1.730 ( c ) at its disposal to enforce the agreement .
Fourth , an attorney ’ s failure to sign a settlement agreement reached during a court-ordered mediation could render the agreement unenforceable . In Gordon v . Royal Caribbean Cruises , 641 So . 2d 515 ( Fla . before 3d DCA 1994 ), the Third District considered the flip-side of the equation when a party ’ s attorney , but not the party , signed a settlement agreement prepared during a court-ordered mediation . Noting that Rule 1.730 ( b ) “ clearly mandates ” that “ a settlement agreement reached during mediation ” must “ be reduced to writing and executed both by the parties and their respective counsel ” the court determined that “ the parties … did not effectuate a settlement agreement in accordance with the dictates ” of the rule . Id . at 517 ( emphasis in original ). In Freedman v . Fraser Eng ’ g & Testing , Inc ., 927 So . 2d 949 , 953 ( Fla . 4th DCA 2006 ), the Fourth District cited Gordon and noted in dicta that although the issue was not raised on appeal , the fact that a proposed mediated agreement was not signed by all the parties and their counsel would have defeated the appellant ’ s argument that the agreement should have been enforced .
To be sure , this issue is not wholly settled
PBCBA BAR BULLETIN 6 in Florida . For example , in Jordan v . Adventist Health Sys ./ Sunbelt , 656 So . 2d 200 , 202 ( Fla . 5th DCA 1995 ), the Fifth District distinguished Gordon , affirming an order enforcing a settlement agreement that lacked the signatures of counsel where “ the parties to be bound [ executed ] the document ” and “ but for the mediation rule , the missing signatures would be superfluous .” Nevertheless , given the uncertainty in the law and all the other reasons that weigh in favor of signing mediated settlement agreements ( even if merely “ as counsel and solely to comply with Florida Rule of Civil Procedure 1.730 ( b )”), when confronted with the question of whether or not to sign , should there really be any question ?
Adam Myron is an attorney with the law firm of Cagnet Myron Law , P . A ., where , as a Florida Supreme Court Certified Circuit Mediator and a Florida Qualified Arbitrator , he focuses a large part of his practice on alternative dispute resolution . Adam is also a civil litigator in the fields of complex business litigation , trust & estate litigation , and professional liability litigation . You can email Adam at amyron @ cagnetmyronlaw . com and learn more about him by visiting https :// cagnetmyronlaw . com / about / attorneys / adam-myron /.
For additional ADR tips and resources , go to https :// www . palmbeachbar . org / alternativedispute-resolution-committee /.