I have had multiple cases, however, where my defendant client wanted the freedom to talk about the settlement (perhaps feeling the size of the settlement payment vindicated its position.) Similarly, an organization may not trust its personnel - or an individual may not trust him or herself - to bite their tongue, making non-disparagement commitments ill-advised under the circumstances.Ī party making a settlement payment expects to buy peace. ![]() In many instances - especially from a defense perspective - we find it appropriate to protect against disclosure of a settlement’s terms and future badmouthing by the other party. Resolving the latter should not foreclose claims under the former. Likewise, a supplier and a manufacturer may have an open, blanket purchase order for production parts while disputing a separate order for tooling. Consider an employment dispute in which an employer settles a former employee’s discrimination claim but still intends to enforce a free standing, non-competition agreement. Sometimes, however, separate agreements do exist, and our client very much intends to rely on their continued enforceability. Typically, we include an integration clause to avoid a future argument about whether one party to a settlement retains claims against the other that derive from a different source or agreement. The danger in drafting a settlement agreement is assuming that a customary provision should be included without sufficiently analyzing whether it needs modification or whether it is even appropriate under the circumstances. Most of us have a stockpile of favorite forms and provisions from which we draw when creating a document. I will not pretend that I cut every settlement agreement I draft from whole cloth. It must meet the requirements for a valid contract - offer, acceptance, mutual assent on essential terms, and consideration.1 An email exchange, for example, can constitute a valid offer and acceptance, even if one party assumed (but did not stipulate) that a mutually agreed, signed settlement agreement was necessary to cement the deal.2 As you explore settlement options, take pains to distinguish whether all essential terms have been identified and communicated before a potentially binding offer is made. Remember, a settlement agreement is simply a contract. Have your checklist in hand and consider taking a pre-drafted settlement agreement to the mediation.ĭISTINGUISH SETTLEMENT NEGOTIATIONS FROM SETTLEMENT AGREEMENTS You do not want to find yourself in the heat of the moment trying to identify and articulate the details you need in a final agreement. Most mediators, if successful in bringing the parties to resolution, want to secure the result with a signed memorandum of some sort, possibly with the final settlement agreement itself. In particular, mediation sessions require advance planning. We can predict that certain events on the calendar will likely prompt settlement conversations, so we want to enter those conversations with our key objectives solidly in mind. Likewise, identify the unique issues that will require customized handling. ![]() Identify the specific takeaways your client needs for a settlement to be plausible. We should develop a settlement checklist as well. ![]() When building a case for trial, we develop timelines, case themes, and evidentiary checklists. That being the case, it makes sense that we devote the same level of craft to drafting settlement agreements as we do to conducting depositions. Some will be dismissed by the court or the claimant, but most will be resolved through settlement. However, we know that based on published statistics and personal experience, few of our cases will be decided at trial. We want to be best positioned to push every advantage available in the courtroom for the benefit of our client or cause. We read about successful trial lawyers, or we attend an ICLE workshop. Those of us who litigate routinely seek to sharpen our pre-trial and in-trial techniques.
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