The Case Has Settled: Who Drafts (and when To Draft) the Minutes of Settlement?

After a long and, at times, challenging day at the mediation table, the parties have been rewarded with a resolution. But, the work is not done. As Samuel Goldwyn once said, “[a]n oral contract is as good as the paper it's written on.” Without a signed agreement that confirms the settlement terms, the parties may be inviting more conflict over what they’ve agreed to. So, I’m not prepared to call it a day until everyone has signed on the dotted line. But when this penultimate moment in the mediation process is reached, who drafts the minutes of settlement? 

My general rule: counsel drafts the minutes
 
I’m not often asked to draft the minutes, but if the question comes up, I’m clear. As a general rule, it’s counsel’s role to draft the minutes. Thankfully, most lawyers are mindful of this responsibility. Every so often, I am asked to serve as scribe, and I’m fine with that so long as it’s clear that the words on the page are the parties’.
 
Why my reluctance to draft the minutes after helping the parties reach the agreement they now want to document? I have two reasons:
 
1.  This is not the mediator’s agreement
 
At its core, my role as a mediator involves facilitating a negotiation process. I encourage, prod and cajole the parties to engage in focused and effective discussion and I strive to guide them towards a resolution of all issues in dispute. A mediation that leads to a resolution requires clear settlement terms. But, ultimately, these are the parties’ terms – not the mediator’s – to document and enforce. Accordingly, the parties (and their counsel) have the onus of ensuring that the mutually agreed upon terms are documented to their satisfaction. During the drafting process I will point out substantive terms that were agreed to and are missing from the minutes. I may also discuss language or phrasing, or act as a scribe if asked, but the parties make the final decision on wording. Bottom line: the parties are accountable to enforce the settlement agreement, so they are obliged to draft it.
 
2. Mediators put themselves in harm’s way by authoring the minutes
 
There is a real possibility that if a mediator drafts the minutes, their words may become contentious. That puts the mediator on the hook should issues of interpretation arise. As mediator Alan Stitt discusses in his book, Mediation: A Practical Guide, it is dangerous if the mediator drafts what he or she believes has been agreed upon. If a key point is omitted, or the language is arbitrary, it could cause further conflict down the road.
 
Two cases about mediation confidentiality highlight potential problems for mediators who undertake the drafting of minutes. An Ontario Divisional Court decision in Rudd v. Trossacs Investments Inc., 2006 CanLII 7034 (ON SCDC) upheld the confidentiality of settlement discussions by refusing to compel a mediator to testify about mediation communications. The mediator in this case had the parties sign a mediation agreement, which contained a confidentiality provision. However, this mediator had also helped draft the minutes and when the settlement fell apart, one party sought to compel the mediator to testify about communication at the mediation despite the existence of the confidentiality provision. Although the court did not address mediator compellability directly, in a future case on different facts a mediator who is heavily involved in drafting minutes may be required to give evidence. In Union Carbide Canada Inc. v. Bombardier, 2014 SCC 35, a dispute about a mediation’s terms of settlement led the Supreme Court of Canada to hold that a standard confidentiality clause in a mediation contract does not preclude producing communications made during the mediation process to prove the scope of the settlement. Both cases suggest that there may be instances when a mediator will be compelled to testify about communications during the mediation. This would be particularly problematic if the parties are disputing the terms of settlement, and the mediator has drafted the minutes of settlement.
 
What if the parties are self-represented?
 
Having counsel draft the minutes presupposes that all parties are represented by counsel. However, with an increasing number of self-represented litigants in our justice system, it’s important to have a plan for drafting minutes when one or more of the parties are self-represented. In a mediation where there is mixed representation (that is, a mix of represented and self-represented litigants), I will call upon counsel for the represented litigant(s) to draft the minutes. In cases where all parties are self-represented, I will agree to be the scribe if the parties are uncomfortable doing so. However, in the minutes, I will address this issue, documenting the parties’ request that I draft the minutes that contain the settlement terms agreed upon by the parties. In all cases involving self-represented litigants, I insist that the minutes include a term that the parties were cautioned to seek independent legal advice and given an opportunity to do so before signing the minutes.
 
Challenges during Covid-19
 
The Covid-19 pandemic necessitated a move online. Despite the learning curve for many and the ongoing technical challenges that come with a process dependent on technology, I have found the transition relatively seamless. However, conducting mediation over a remote platform, like Zoom, can present challenges when it comes to documenting a settlement.
 
At the conclusion of a mediation, mental and emotional exhaustion is common. “Zoom fatigue” can accentuate these feelings. The parties are often in no mood to draft minutes of settlement at the end of long day online.
 
During the pandemic, I have been asked to draft the minutes and I’ve had counsel suggest that the drafting of minutes could be deferred until the next day. While I recognize the challenges of fatigue on many levels, I insist on some form of documentation to confirm the terms of settlement. Although not my preference, at a bare minimum, an email exchange between counsel confirming the terms of settlement and their acceptance pending the drafting and signing of relevant settlement documentation will often suffice. Ideally, however, counsel will invest the time to prepare and finalize minutes of settlement at the mediation session, with signing completed through various electronic formats. Proactive counsel come to mediation prepared with draft minutes and release, which makes drafting much faster and easier at the conclusion of the mediation session.  Parties and/or counsel may raise compelling reasons for delaying the signing of minutes (fatigue, lateness of the hour, other commitments). I can assure you those reasons do not come close to outweighing the risks of not signing, which may include attempts to re-negotiate terms, as was the case in a dispute I mediated that required considerable additional work and billable time with counsel on my part to get the deal signed and sealed. The additional work, and associated cost, could have been avoided had the minutes been finalized and signed on the day of the mediation. In extreme cases, a failure to get the minutes signed may result in a subsequent dispute over the terms of that settlement or, even worse, whether a settlement was reached at all. Bottom line: if you’ve invested all that hard work in negotiating a settlement invest the necessary time to get it properly documented at the conclusion of the mediation.
 
Final thoughts
 
At first glance, the complications that can arise from a mediator’s involvement in drafting the minutes of settlement may be difficult to perceive. But considering the potential consequences, I would rather err on the side of caution to avoid potential trouble down the road. To preserve and protect the confidentiality of the mediation process and my neutrality and independence as a mediator, I leave the drafting of the minutes of settlement to the parties and their counsel. As for timing, I insist that the minutes get finalized and signed before concluding the mediation session.