How will the mediation settlement agreement be signed?
There are several challenges on how remote mediation will work but one of the most fundamental questions is how will any agreement be signed.
We have the ideal solution. There is no need to have access to office equipment such as scanners or a printer. We can use an electronic signature.
Below we look at how they work.
The Legal Position
Most contracts under English law can be made informally, that is to say they do not require a signature and can be created orally or by conduct. The only exception is a contract for land. However, in most formal situations, parties do wish to record their agreement in writing and sign their agreement to the terms. This is obviously helpful to show the parties intentions, especially if the matter should ever be litigated.
While a signature may not be strictly necessary, it has always been a fundamental part of the mediation process that you reach agreement, record it in writing and sign it to make it legally binding and that signed agreement can then be forwarded to the Court or form the agreement between the parties.
What is an electronic signature?
The EU eIDAS Regulation (Regulation (EU) No 910/2014), which remains part of English domestic law, defines an “electronic signature” as meaning:
“data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign”.
With Article 25(2) of eIDAS providing that a qualified electronic signature “shall have the equivalent legal effect of a handwritten signature”.
An electronic signature may take many different forms. These include:
- Typing your name or initials at the bottom of an electronic document, such as an email or a word document contract
- Using a scan of your signature and pasting this into an electronic document
- Clicking an “I accept” or “I agree” button on a website.
- Using a finger to sign an electronic document via a touchscreen or on a tablet.
- Using a web-based e-signing platform such as DocuSign to generate an electronic digital signature
Will my signature be legally binding?
Electronic signatures are valid under English law provided that:
- the person signing the document intends to authenticate the document; and
- any formalities relating to execution of that document are satisfied.
This was set out in the Law Commission’s 2019 report on Electronic Execution of Documents and recently endorsed by the UK Government in a Ministerial Statement on 3 March 2020 (https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2020-03-03/HCWS143/)
There are still certain cases where an electronic signature is not an option – such as documents needing to be filed at HM Land Registry or HMRC or a will.