Third, have a solid understanding of the laws regarding settlement agreement enforcement before approving a settlement agreement. Second, remember that some “general” provisions we might not always think of as being valuable negotiation items may in fact be of value to one or more parties and may significantly impact the overall agreement or outcome. So what can counsel do to craft complete and durable agreements which will stand up to challenge and which eliminate uncertainties between parties and counsel?įirst, have a draft settlement agreement to take with you to each mediation or settlement discussion. The California Supreme Court has wisely cautioned counsel to “be wary of ‘overly broad, loose terms in release agreements’” stating that “‘(A)ttorneys’ energies are better spent making sure that release agreements accurately reflect their clients’ intentions than in litigating what their clients really intended when they signed agreements.’” ( Hess v. And we shudder to think that the settlement agreements we have drafted might be held unenforceable if challenged, possibly resulting in lost clients, lost money and malpractice suits. None of us likes the idea of spending the time, money and effort to reach and draft agreements on what we think are the important settlement terms only to realize afterward that key terms were left out or left uncertain. Whether you are plaintiff or defense counsel or mediator, our common goal is securing a settlement that satisfies you and your clients. Enforceability of settlement agreements is an important consideration for all of us.
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