Signatures? We Don’t Need No Stinking Signatures

By: Philip G. Thompson
Florida Supreme Court Certified Circuit Civil Mediator
Florida Supreme Court Qualified Arbitrator

Many of you may recall a prior article I wrote where I discussed the mandates of Fla.R.Civ.P. 1.730 in terms of who was required to sign the mediation agreement. This Rule addresses completion of mediation. Previously, subsection (b) of the Rule stated in part: “If a partial or final settlement is reached, it shall be reduced to writing and signed by the parties and their counsel, if any”. Based on this language, various appellate courts found that if a mediation conference took place, and a written agreement was reached but not signed by all the parties themselves and their counsel, there was no enforceable agreement. In the past, this mandate was very problematic as many litigants got cold feet and backed out of a mediation agreement where only the party’s attorney signed the mediation agreement but the actual party did not. Or conversely, a party backed out of a mediation agreement that they signed but their attorney did not. Because Rule 1.730 displaces the common law rule allowing parties to reach a meeting of the minds on settlement without any formal signatures (like two attorneys settling a case over the phone with clear and unequivocal authority from their clients) this Rule must be strictly construed. As such, in the past, many litigants thought they had a binding and enforceable mediation agreement, but the courts held otherwise because all the required signatures were not present.

However, this Rule was amended earlier this year, and as of April 1, 2025, attorneys are no longer required to execute the mediation agreement. Subsection (b) of Rule 1.730 now reads in part: “If a partial or final agreement is reached, it must be reduced to writing and signed by each party or the party’s representative having full authority to settle under rule 1.720(c)”. With this amendment, only a party or the party’s representative is required to execute the mediation agreement. But, who can serve as the party’s representative under Fla.R.Civ.P. 1.720(c)? That Rule states the following in part:

“A ‘party representative having full authority to settle’ shall mean the final decision maker with respect to all issues
presented by the case who has the legal capacity to execute a binding settlement agreement on behalf of the party.”

Does this mean that a party’s attorney can sign the mediation agreement acting as the party’s “representative having full authority to settle”? No. Pursuant to this Rule, a party representative must be the final decision maker with respect to all issues. Under Florida law, the final decision whether to enter into a mediation agreement lies with a party and not their attorney. Pursuant to Rule of Professional Conduct 4-1.2(a), “a lawyer must abide by a client’s decision whether to settle a matter”. Thus, the lawyer is never the final decision maker with regard to settlement at a mediation conference. The party is.

Moreover, support for this conclusion can be gleaned from Fla.R.Civ.P. 1.720(b). This Rule governs who must appear at the mediation conference and states the following:

“A party is deemed to appear at a mediation conference if the following persons are physically present or, if authorized under
rule 1.700(a), participating through the use of communication technology:

(1) The party or a party representative having full authority
to settle without further consultation; and
(2) The party’s counsel of record, if any; and
(3) A representative of the insurance carrier for any insured party who is not such carrier’s outside counsel and who has
full authority to settle in an amount up to the amount of the plaintiff’s last demand or policy limits, whichever is less,
without further consultation.”

Thus, as one can see from subsections (1) and (2) above, if a party is represented by an attorney, both the party or their representative must appear for the mediation conference along with their attorney. Based on this language it is clear that the attorney isn’t also serving as the party representative. If a party is represented by counsel, counsel is always required to appear at the mediation conference. In addition to counsel’s presence, the Rule requires the presence of their party or someone else acting as their party’s representative. So party representative in this context does not mean the party’s attorney. The party representative is attending the mediation conference in addition to the attorney. If the attorney could serve as the party representative, the Rule would not require this person’s presence in addition to the presence of the attorney.

This conclusion is also buttressed by the language in subsection (3) of Rule 1.720(b). That subsection deals with the appearance of a representative of an insurance carrier providing coverage for an insured party. This language mandates that a representative of the insurance carrier attending the mediation conference cannot be the carrier’s outside counsel.

So, when all these provisions are read together, it is clear that an attorney of record representing a party at a mediation conference isn’t also deemed to be the party representative. The attorney and the party representative are mutually exclusive. To that end, it is common knowledge that many attorneys operate under the assumption that they can sign a mediation agreement on their client’s behalf. But remember, this is not called for in Rules 1.720 or 1.730, and these Rules are to be strictly construed. Rule 1.730 says that the mediation agreement must be signed by the party or the party’s representative. Rule 1.720 does not allow the attorney of record to also be the party representative with full authority to settle as the final decision maker. Thus, while the latest amendment to Rule 1.730(b) relieves the attorney of record from any obligation to sign the mediation agreement, attorneys should still exercise caution if they choose to sign the mediation agreement. While it is permissible for the attorney to sign the mediation agreement along with their client who is the named party or the party’s representative with full authority to settle, an attorney should not sign the agreement on behalf of the named party in lieu of the party or their representative. Without the required signature of the party or their representative with full authority to settle, the agreement is not binding and enforceable.

We all know that when parties leave a mediation conference before they can sign the written agreement, there is always a chance that they can be influenced by other people or information outside of the mediation conference. When this happens, a party can refuse to go forward with the agreement you worked so hard to obtain. Best practice is to comply with Rules 1.720 and 1.730 and obtain signatures from all the parties or their representatives with full authority to settle. Don’t tempt fate and sign a mediation agreement on behalf of your client!