When you have worked your way through a mediation and gotten to a successful conclusion, reduce the settlement to writing with everyone present and all minds focused on what was agreed upon. That way it is clear that all participants really do agree on what is in and what is not in the agreement. Years ago I represented a party that was left out of a day-long negotiation during which the other 6 parties involved all settled out. I got to watch as almost anoutside spectator while the settlement fell apart and the parties ended up back in front of the judge who was presiding over the lawsuit. The cause of the fight among the settling parties was obvious: they had failed to reduce the terms of their settlement agreement to writing at the end of what they all thought had been a successful negotiation.
If either the attorney or the client know of specific issues, which they need addressed as part of a successful settlement these issues need to be raised prior to the handshake and departure. If you do not want to settle without a confidentiality clause, a non-disparagement provision or any other important provisions which may come up in any individualized dispute, you must ensure those items are on the table before you conclude the settlement negotiations. Otherwise, you can expect the other party will not agree to those additional terms without new consideration, meaning you are either back to negotiating or back to litigating. The same caveat goes for enforcement provisions regarding those or other provisions. If you want terms and conditions included in the settlement, raise them before the settlement finalized.
From what we witnessed at that long ago mediation and the subsequent court battle, my client and I learned a lot about settlement agreements that fall apart. I should note that once the dust settled on the other parties’ issues in the ensuing scramble, we were able to successfully settle our portion of the claim for the amount we had earlier determined was reasonable. And we did so without the additional attendant expense and heartburn that the other settling parties incurred due to their failure to reduce their agreement to writing.
Timothy G. Kerrigan is the director of Kerrigan Law PLLC. His present practice focuses on civil legal matters including insurance, , personal injury, family law, commercial transactional issues, litigation, mediation and arbitration Mr. Kerrigan is also certified by the State Office of Mediation and Arbitration both as a mediator and as an arbitrator. You can contact Attorney Kerrigan at 603-943-5555
