The Case Has Settled: Who Drafts 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: “An 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. 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? 
 
At a recent mediation one of the counsel involved asked if I would mind drafting the minutes. I’m not often asked to draft the minutes, but when 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. Very occasionally, I am asked to act 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 offer 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 harms 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 agreement 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.
 
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 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.