Victoria Pynchon—she of the Settle It Now Negotiation Blog—asked me the following question:
While I was practicing, it was common for the opposition to put signature lines on settlement agreements for the attorneys’ signatures. I always refused to sign these, saying, “I’m not a party to this contract and I don’t think my signature adds anything to it.” Now, on several occasions, I’ve been asked as a mediator to sign the parties’ “term sheet” and on one occasion to sign a final agreement, indicating that the parties entered into the agreement knowingly and in good faith. These latter requests pose an even greater problem to me as a mediator AND to the parties. I worry that signing as a mediator, particularly making representations about the process, could diminish the protection provided to the parties’ by the principle of mediation confidentiality, which is particularly strong here in California.
Any thoughts on any of these issues?
These issues were new to me, so I began by doing what I do whenever someone asks me about a usage I haven’t encountered before—I searched the “material contracts” filed on the SEC’s EDGAR system. (For more on searching EDGAR, see here and here.)
I looked for any indication of attorneys signing in their own capacity—and not under a power of attorney—a settlement agreement that they had negotiated on behalf of a client. I found a grand total of 45 instances of attorneys signing a settlement agreement under the notation “APPROVED AS TO FORM AND CONTENT.”
I’m sure that a different search would have found further such contracts using different wording. But regardless, that’s a palty number of contracts, given that EDGAR contains 15 years’ worth of contracts. I’m not surprised, as it seems odd to have attorneys formally approve a settlement agreement. It’s the parties who are agreeing to settle—they certainly don’t need, and shouldn’t be asking for, attorney approval. If the aim is to show that the parties had the advice of attorneys, it would make more sense to have the parties state as much in the settlement agreement. If any party were to subsequently claim that in fact it hadn’t received attorney advice, it would presumably be a straightforward matter to show otherwise.
So I agree with Vickie—if someone were to ask me to sign in my own capacity a settlement agreement I had helped negotiate, I’d decline.
I feel the same way about having a mediator sign an agreement. And besides, I’d never be willing to attest as to someone else’s good faith—who knows what evil lurks in the hearts of men? As regards mediation confidentiality, Vickie’s better placed than I to determine whether this practice raises any such issues.