After successfully negotiating a final settlement agreement between disputing parties, mediators find themselves needing to draft the settlement terms, and most of the time, needing to obtain the parties’ signatures beneath those terms.
In traditional in-person mediations, a mediator would typically type up the mediated terms, present the draft to the parties for review, and if the draft accurately captured the parties’ agreement, have them sign the agreement. The parties would then leave with their copy (sometimes containing the mediator’s signature as well), and all would be right with the world.
However, in the age of online mediations, mediators found themselves resorting to e-signature platforms such as DocuSign, HelloSign, and Adobe Sign, just to name a few. They did this for the ease and convenience it offered in securing electronic signatures from remote parties. They saw the flexibility it provided all participants to be able to sign with their finger on a smartphone screen instead of doing the 2005-era email-print-sign-scan-email dance, or worse, 1995-era faxing thing. And they were comforted by the growing legitimacy and legality e-signatures were afforded by businesses and courts–See the United States Electronic Signatures in Global and National Commerce Act (ESIGN), the Uniform Electronic Transactions Act (UETA), and the EU’s General Data Protection Regulation. All discussing e-signatures in some form or another, including the validity of an individual’s electronic signature, and the protections that come with it.
But the benefits utilizing e-signatures was not without its costs, some literally. Some e-signature platforms would charge $30 or more each month for an individual to send out electronic signature requests to clients. Other platforms would cut corners in protecting customers’ personal data. On the implementation side, some users failed to utilize quality controls in their workflows to ensure their e-signing clients received a copy of their signed document. Or they failed to destroy incomplete documents containing signatures of just one or some parties.
The following are some tips I would give to online mediators to protect the e-signing process and make sure their parties have a quality experience.
1. ALL SHOULD SIGN BEFORE THE MEDIATION SESSION ENDS – The mediation is not over until you the mediator declare an impasse or the parties have signed off on their agreement. Letting parties go prematurely with their promise that they will later sign the agreement is a recipe for disaster. Be sure to keep your Zoom meeting running until everyone has signed off on the agreement, and you have sent parties their final copy containing all e-signatures.
2. PREPARE A COMPLETED DOCUMENT – Make sure the document to be signed is a thoroughly completed representation of what the parties will actually review and sign. Unlike when using pen and paper in in-person mediation, you cannot just scratch out, or write in and initial changes in an electronic document once it’s sent out for review and e-signature. You should make sure you think through all the terms that need to be typed into the mediation agreement BEFORE sending it out to the parties. These terms should include the parties’ agreement terms, as well as the state laws or jurisdictional rules that may also need to be written into the document to give it legitimacy. In Texas for example, there are certain words regarding the binding nature of the mediation agreement that must be written conspicuously into the document itself for all parties to see and read before they sign. So be sure you have typed in all necessary information into the mediation agreement. It may help to keep a checklist on the side to help you remember all the topics that must make it into the final document before it’s sent out for signature.
3. BE VIGILANT AGAINST DURESS — A benefit of in-person mediations is the ability to see the party sign in front of you. With online or remote mediations, oftentimes parties are signing from a distance, and they may be in an environment where they are facing threats, coercion, or pressure. Mediation is a voluntary process (unless court-ordered), and people need to come to negotiated settlement agreements without fear of threats, and they should not sign under duress. Make sure to repeatedly ask parties if the agreement is THEIR agreement, if they will stand by THEIR agreement, and if they are entering into THEIR agreement voluntarily. If you sense something is wrong, listen to your gut. If you sense an individual is signing under duress from their location, especially if they are residing with the other signing party, then you as a mediator have an ethical decision to make, which includes possibly declaring an impasse and ending the mediation. I’m not talking about the “crying signer.” Not every waffling party who cannot make up their mind justifies canceling a mediation. But we are discussing clear cases of abuse, threats of harm, and other situations where it is plain to see a person is being coerced into a decision not their own. Be careful. Be vigilant. Try your best to make sure e-signers are signing from their location voluntarily and without duress.
4. DESTROY UNOFFICIAL COPIES – In the drafting process, it’s normal by the end of the mediation session to end up with loose pieces of information that never make it into the finalized signed document. But the last thing you need is having multiple conflicting pieces of information become post-mediation fodder for arguments between the parties. The parties should walk away with the same copy of their e-signed mediated settlement agreement, signed by all official parties to the mediation. Control the potential damage that might come out of post mediation disputes by making sure everyone relies on only one official copy. Destroy everything else to prevent confusion between the parties. This means also deleting unused, unsigned, and incomplete draft versions of mediation agreements sent to the parties for e-signature still inside your e-signature software. You should keep your own templates of course, but these should not contain other parties’ terms or information.