In a mediated settlement, the drafting of a settlement agreement is the responsibility of the parties. The mediator can of course be available to facilitate the settlement process and to help the parties resolve any drafting problems. However, it is for the parties to ensure that their written agreement incorporates all material terms of the settlement and does so in a format that makes them clear, free from ambiguity and readily enforceable by a court.
In the age of mediation by videoconferencing, how is the drafting and execution of a settlement agreement to be accomplished? Most online applications allow documents to be shared on-screen and therefore to be collectively and contemporaneously edited. This may be suitable, but the editing process is often reflective and may also be accomplished through exchanging emails with attached drafts that have been considered, refined, discussed and agreed privately. An additional advantage of using emails is that it provides greater security by limiting the editing process to the private email accounts of those involved.
When the written terms of a settlement agreement are agreed, how is the agreement to be signed? Some recommend online signature services such as Docusign. Others suggest that signed documents can be scanned and emailed while the originals are collected and later exchanged by party representatives. There are also other, less secure ways, but whatever method is agreed by the parties, two points are suggested.
First, it is always best to have the agreement signed by all parties at the time of the mediation, rather than later, when someone’s mind may change. Second, even if the mediator cannot witness the signatures of the parties, the mediator can confirm, by countersignature on a copy of the document, that he/she has personally confirmed with all parties that they have read, understood and agreed to the stated terms.
Finally, where parties have a solicitor present, a formal undertaking as to the future execution of the document may also be a route around any practical difficulty in execution.