Rule 1.730(b) of the Florida Rules of Civil Procedure, dealing with “Completion of Mediation”, unequivocally states that, “If a partial or final agreement is reached, it shall be reduced to writing and signed by the parties and their counsel, if any.” Last week, a Florida appellate court once again refused to enforce a mediation settlement agreement that was not signed by all parties. In effect, the court said that the rule means what it says.
In Dean v. Rutherford Mulhall, P.A., 34 Fla. L. Weekly D1739b (Fla. 4th DCA August 26, 2009), the plaintiff law firm sued a former client for nonpayment of legal fees. The parties attended mediation, after which the mediator reported to the trial court that they had agreed to continue working toward a resolution. Thereafter, the plaintiff filed a motion for entry of final judgment, to which it attached a purported “Mediation Settlement Stipulation”. The stipulation was signed by the appropriate representatives of the plaintiff, as well as by the defendant’s attorney. Conspicuously missing, however, was a signature of the defendant. That fact notwithstanding, the trial court entered a final judgment based on the stipulation, and the defendant appealed. In reversing, the Fourth District Court of Appeal quoted Rule 1.730(b), and cited a line of Florida cases uniformly holding that an alleged mediation agreement is not binding absent the signature of all parties.
Rule 1.730(b) seems simple and straightforward in theory, but may not be so simple in practice. Consider a situation in which husband and wife are joint parties; only one may come to the mediation despite the rules setting forth attendance requirements, on the assumption that he or she has “full authority” to negotiate for the other. This is not necessarily a wise assumption, because the absent spouse may later refuse to sign. See, e.g., Holler v. DeHoyos, 898 So.2d 1216 (Fla. 5th DCA 2005) (while mediation agreement could not be enforced against non-signing absentee spouse, court could sanction absentee spouse for failing to appear at mediation). Other examples include litigation between the personal representative of an estate and several heirs, some of whom may be unable to attend mediation, situations where a defendant is insured but only the insurer’s representative and defense attorney come to mediation, or situations where only the attorney appears, claims to have full authority, but states that his or her client is “available by phone if necessary”.
So what is one to do? The lawyer whose client is present may simply refuse to participate in the mediation until he or she can obtain a court order compelling the other party’s attendance. In my experience, however, most lawyers will press on, at least for a little while, just to see if any real negotiations are possible. In those situations, I attempt first to secure an agreement with the absent client and his or her counsel that the client will be available by telephone throughout the entire mediation, that I will be permitted to talk to the client (with counsel present) whenever I request, and that if an agreement is reached, the client will take whatever steps are necessary to review the written settlement agreement with counsel, sign it and return the executed signature page that day, taking advantage of e-mail, home fax machines, and the neighborhood copy shop.
By securing that agreement, we can proceed with mediation in the most “normal” way possible under the circumstances. A perfect solution? No. But it beats the result in Dean any day of the week.
The Upchurch Watson White and Max Mediation Group is pleased to announce that third year law student Whitney Henry has been selected as the 2009-2010 Cumberland School of Law Rodney Max Mediation Fellow. Established by Rodney A. Max, principal at Upchurch Watson White and Max, nationally renowned mediator, and 1975 graduate of Cumberland School of Law, the fellowship recognizes the interest, achievements and scholarship of Cumberland students in the area of mediation.
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