Published: November 2022
Written by: 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 (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 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 email@example.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/alternative- dispute-resolution-committee/.