After a long and, at times, challenging day at the mediation table, the parties have been rewarded with a resolution. 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. So, I’m not prepared to call it a day until everyone has signed on the dotted line. 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:
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