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The Written Settlement: Don’t Leave Home without It!

Apr172012
Bruce's Corner
Absent a written settlement agreement or term sheet signed by the parties or a settlement on the record transcribed by a court reporter, a settlement agreement reached in mediation is not enforceable under California law.  Hopefully, you have not had the experience of a long mediation ending late in the evening with an agreement to settle the case, but no signed settlement agreement or term sheet, and having the other side wake up the next morning with buyer’s or seller’s remorse and renege on the settlement.   This situation not only negatively affects the case itself, but also the attorney client relationship and can and should be avoided.
I have mediated quite a number of cases and despite the fact that I ask counsel to bring a written settlement agreement with them that reflects all of the terms that they desire in the settlement, very few do so.  It is common for issues like confidentiality of the settlement to arise late in the negotiating process or after the parties have reached agreement.  Absent inclusion of the issue in a settlement agreement or term sheet, it may not be possible to include such a term in the settlement.
So, again I cannot stress the point enough: Bring a draft settlement agreement with you to the mediation.  Not only will it legally seal the deal, but it will also help you identify issues that need to be negotiated in the mediation other than the settlement amount.  If nothing else, insist on the preparation of a written term sheet at the mediation that recites the terms of the settlement.  It may end up being the document that you use to enforce the settlement itself.
–Bruce

Bruce A. Friedman is a mediator with a national practice. With years of litigation experience behind him, he understands the goals of the mediation process and will do his best to ensure that the needs of both parties are met, justly and efficiently. For more information on the mediation services that Bruce A. Friedman provides, check out his website at http://www.FriedmanMediation.com, his profile at ADRServices.org, or call him at (310) 201-0010.

Category: Bruce's CornerBy bfriedmanApril 17, 2012
Tags: mediationsettlement

Author: bfriedman

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Testimonials
  • [Bruce] knows when to talk, when to listen, and how to work the room.”

    James Thompson
    JPT Legal
  • Bruce took time to point out parts of each side’s case that could be made stronger and parts that could be deemphasized or omitted. Bottom line: the client came out of the exercise with a more focused case and better able to advance its positions. Bruce was superb.

    Ellis Mirsky
    The Network of Trial Lawyers
  • Bruce was prepared and understood the issues and the practical aspects of the cases. I really appreciated Bruce’s efforts in continuing to work with me and opposing counsel and his perseverance in settling the case.

    Frederick S. Reisz
    Meyers McConnell
  • I have known Bruce for years and highly recommend him. As a native New Yorker, he will be hearing significant matters in NYC as well as in L.A.

    Jeffrey Kravtiz
    Fox Rothschild
  • Bruce’s willingness to continue to follow up with both sides to settle the matter and his efforts in speaking directly with the clients to explain the issues and possible outcomes should the case proceed to trial were invaluable.

    P. Garrell
    Liner Law Firm
  • From the outset of the mediation, it was clear that Bruce understood the case and structure of a class action settlement. He was effective in his discussion of the issues in the case and made many helpful and constructive suggestions with respect to the negotiating process and the settlement terms.

    Tim Blood
    Blood, Hurst & O'Reardon LLP
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