This is an extract of our Reaching A Settlement document, which we sell as part of our Alternative Dispute Resolution Notes collection written by the top tier of City Law School students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Alternative Dispute Resolution Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Reaching a settlement (final stages of negotiation or mediation)For 3 reasons, things can go wrong at this stage:
o (1) parties and lawyers likely to be tired
(2) those involved may have focused on particular issues and forgot other points requiring agreement
(3) may not be clear when a negotiation process comes to an end (if there is an ongoing exchange of communications or overlapping offers, or when a mediation finishes (if a case does not settle on the day and the mediator retains some involvement.
-A settlement is essentially a contract, and thus is based on contractual principles.
o A settlement will be reached and binding as soon as the requirements for a valid contract are met.
o ICLR can be shown easily where there is a desire to settle.
o Consideration can be shown easily where there is a compromise involved
Offer & acceptance can arise in many ways, not necessarily any formalities
Terms need to be sufficiently clear, but they may be clear and binding without necessarily being the terms a party intends.
o If one party lacks capacity (eg child) any settlement reached is conditional on court approval
If one party is a public body or company, settlement may need to be approved by a committee before being binding.
-A potential settlement may not be binding, or may be challenged, on contractual grounds:
o Parties may specify that they only intend to create legal relations, and thus be bound by settlement, in certain circumstances, eg when the terms of a consent order are agreed.
o A party may be able to issue proceedings to set aside a settlement agreement, or defend enforcement proceedings brought in respect of such an agreement, if the contract is vitiated by fraud or misrep.
Oral agreement and email
-A binding settlement from negotiation or mediation can be reached in relatively informal ways, including orally or exchange of emails.
-Provided the terms are sufficient clearly ? an agreement could be binding, even if precise wording of a consent order not yet finalised.
-If an exchange takes place over a period of time, some terms may be agreed before an overall agreement is finalized, and care may be needed to ensure that points made orally in early stages are not potentially binding representations.
-So crucial to ensure process and terms are absolutely clear.
-If intended that the oral agreement is subject to some condition (eg client approval),
or not be binding until reduced to writing and signed, this needs to be clearly agreed in advance.
Buy the full version of these notes or essay plans and more in our Alternative Dispute Resolution Notes.