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Produced in partnership with Chris Fitton, mediator of IPOS Mediation
The basis on which mediations take place is usually contractual, and typically includes a provision to the effect that ‘any agreement reached at or following the mediation shall not be binding on the parties unless it is recorded in writing and signed by the parties and/or their authorised representatives;’ (IPOS Mediation Agreement). As a result, once an agreement in principle has been reached following an in-person mediation, both sides’ lawyers usually share a laptop and start drafting, seeking to agree settlement agreement wording. It is then printed off and each lawyer has their client sign the same (paper) copy. This usually takes place in a law firm setting, where late night printing is not a problem (printer access codes permitting!) both sides are physically present to sign. The fully signed version is then photocopied, and each side leaves with their own copy The original is usually retained by the claimant law firm, or whichever side has carriage of the Tomlin/Consent Order if there are court proceedings.
For a video conference (VC) mediation, however, the lawyers cannot gather in the same way, and the person then needing to sign (either the principle client representative or the lawyer they have delegated) may not have the facility at home to print a hard copy—still less the facility to create a pdf of that hard copy after signing.
For these difficulties, consider the following solutions for negotiating the settlement agreement wording and signing the settlement agreement.
For simplicity/control, it can help for the lawyers to send these successive drafts to each other not directly, but via the mediator (mediator on email). All such emails should be marked as being sent as part of the mediation and as being subject-to-contract.
This can be useful for a ‘drafting by committee’ exercise within a party group remote attendees amending ‘live’ with a view to then agreeing a form of words to put back to the other side. In practice, it is much less useful for opposing sides to jointly amend the same document ‘live’, and potentially confusing even using track changes And lawyers can dislike drafting amendments with other lawyers watching over their shoulder,
A particular law firm may take the view that the security of a particular VC platform is not sufficient for something as sensitive as document sharing, so may propose the parties use a different document storage/sharing tool instead, like Dropbox, Tresorit, etc. The above comments with regard to sharing drafts noted above still apply.
In addition, some sensible precautions would include:
• (a) in the mediation agreement, limit the ability to bind by way of an exchange of emails, to an exchange of emails between the respective lawyers only
• (b) only once both lawyers are agreed on the entirety of the wording, convert that ‘final’ version to a pdf. (This makes identifying the ‘final’ version easier and may guard against inadvertent further amendment)
• (c) agree through the mediator which lawyer will send that pdf to the other lawyer as an offer that his/her client would settle on those terms
• (d) the recipient lawyer replies with a simple acceptance email—wording as simple as ‘By this email my client accepts the settlement offer your client makes in the attachment to your email.’
• (e) the offeror lawyer acknowledges receipt of the other lawyer’s acceptance email
• (f) prior to step (c) above, emails should remain marked ‘subject to contract’ (see, for example, Mi-Space v Bridgwater, as discussed in News Analysis: In brief—Settlement reached by email exchange (Mi-Space v BCE)
If a signed hard copy may later be needed, the settlement agreement wording should contain a contractual right on any party to later call on the other to sign a hard copy.
If a party (or a lawyer on his/her behalf) ‘signs’ the settlement agreement using an electronic signature, the courts will generally regard that the same as if they had signed in ink (see Electronic Communications Act 2000). The logistics of signing are straight-forward; one or other entity (possibly the mediator) will need a paid-for account with an esignature provider (eg DocuSign, eversign). After the final wording is agreed and the parties are ready to sign, that account holder sends the document electronically to the required signatories. Each of them then adds their respective signature using the signature software, which then confirms all have signed. This does require a little setting up in advance of the mediation day—the parties signing may wish to pre-register and familiarise themselves with the signature provider. But on the day, it is quick and simple and requires no printing or scanning.
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