Comments on Attorneys Signing Settlement Agreements Due 10/1

The Supreme Court of Florida has received a petition from The Florida Bar Civil Rules Committee stemming from a case reported a couple of years ago, Parkland Condominium Association, Inc. v. Henderson, 350 So. 3d 484 (Fla. 2d DCA 2022) where the court did not enforce a deal when the attorneys signed a mediated settlement agreement, but the parties never did. The proposed rule change to Fla. R. Civ. P. 1.730 will no longer require signature of counsel to the parties on mediation settlement agreements and will permit the signature of a party representative (e.g., insurer) if they have full authority to settle. Many cases we see referred to mediation have no Certificates of Authority despite the civil rules saying they must be timely filed before mediation. Mediators compromise their neutrality when they are asked by counsel and their clients to police such compliance. The Civil Rules Committee notes that in reviewing Rule 1.730, it requires, "erroneously," a lawyer's signature on a mediation agreement as Florida law does not otherwise require it. The applicable statute merely requires that a mediated settlement agreement be "signed by the parties and, if required by law, approved by the court." See § 44.404(1)(a), Fla. Stat. Attorneys signing at the end gives a certain gravity to the mediation process and evidences they have read over it and advised the parties signing. I never saw counsel complain in decades of doing this. Comments are due by October 1,2024. Find more on case number SC2024-0774 here--https://tinyurl.com/mrxuxcmj

Nonsignatory Attorneys Bound by Settlement Agreement?

In a recent decision out of Florida's Fourth District Court of Appeal on cases 4D2022-3194 and 4D2022-3438, an attorney that did not enter an appearance, nor sign either settlement agreement at issue, authored a blog post commenting about the outcome of the underlying litigation and remarking negatively about one of the parties. The trial court hearing a claim for breach of contract then reasoned that the lawyer was bound by the settlement agreements' plain language, recognizing that Florida law does not require a signature as a prerequisite to be bound by a contract. The trial court also found that the blogging lawyer's undisputed conduct breached the settlement agreements' applicable confidentiality and non-dissemination provisions. On appeal, the sole issue as defined by the appellate court was a narrow one: whether the nonsignatory attorney to the settlement agreements that his clients signed, is bound by the settlement agreements because they include provisions purporting to bind the lawyer specifically by name or by his role as "counsel" or "attorney." The 4th DCA answered this question in the negative from a purely contractual standpoint. While it may be true that the lawyer negotiated the settlement agreements, transmitted them to his clients for their signatures, returned the settlement agreements to the attorney representing them in court, and benefited from the settlement agreements, these are customary actions performed by attorneys. Because the blogging lawyer did not sign the settlement agreements, is not named as a party, and did not manifest consent to be bound, the appeals court found that he is not bound, and the trial court erred by granting summary judgment in favor in the breach of contract lawsuit. See more here-- https://tinyurl.com/eye7xme9 and https://tinyurl.com/2np7rp4

Orlando Mediator's 400th Post! Standard of Review for Settlements De Novo

A District Court of Appeal (DCA) in Florida has concluded the standard of review of a trial court’s decision under section 44.405(4)(a)5. of the Mediation Confidentiality and Privilege Act, regarding whether a confidentiality or privilege attaches to a mediation communication “[o]ffered for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation,” is de novo. In the recent decision of Brickell Financial Services - Motor Club, Inc. v. Road Transportation, LLC, on remand the trial court was instructed by the Fourth DCA to weigh the settlement accounting, along with the parties’ mediation communications, and any other admissible evidence, in determining whether a meeting of the minds occurred regarding the dollar amount to which the term “Settlement Sum” referred and, if so, what that amount was. They cited a prior decision in DR Lakes Inc. v. Brandsmart U.S.A. of West Palm Beach, Inc., 819 So. 2d 971 (Fla. 4th DCA 2002), which pre-dated the legislature’s enactment of section 44.405 in 2004, but interpreted section 44.405’s predecessor, section 44.102(3), Florida Statutes (2001). That was after initially stating “all mediation communications shall be confidential,” the legislature created an exception in section 44.405(4)(a)5. for any mediation communication “[o]ffered for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation.” The Fourth DCA reminded parties and the trial court that a party seeking to enforce a settlement agreement bears the burden of showing the opposing party assented to the terms of the agreement. See more here-- https://bit.ly/3eyYP5I