American Judges Association
Date of this Version
October 2002
Abstract
Have you ever attended a settlement conference and come away thinking the case was settled, only to later find out that your adversary has a different understanding of the settlement terms than you and your client? This is a frustrating experience, but is completely unnecessary. Careful lawyers and judges prevent such confusion by ironing out the details of a settlement at the time an agreement is reached. Leaving specific settlement terms unresolved to a later date may result in an unenforceable settlement or possible litigation to enforce the settlement. Settlement conferences play an important role in the resolution of litigated disputes. Judges and mediators spend numerous hours and even days working with parties to bring about a settlement. With only 2.2 percent of all federal civil cases going to trial, settlement is the predominate means by which cases are resolved. Although most cases are settled by the parties without direct involvement by the court, numerous cases are settled with the assistance of the court or mediators at a settlement conference or court-sponsored mediation. This article explains the steps parties and the court should take to insure an enforceable settlement. By paying careful attention to all necessary issues for resolution at the time a settlement is reached, parties can prevent future misunderstanding and conflict over the settlement terms. The principal issues parties face at the time a settlement is reached include 1) monetary terms; 2) scope of releases; 3) confidentiality of the settlement terms; 4) disposition of the litigation; 5) enforcement of the settlement; and 6) documenting of the settlement. This article explores these issues and strongly suggests that parties discuss, resolve, and memorialize the understandings reached at the settlement conference or as soon thereafter as is practicable in order to minimize later problems. A settlement checklist is provided for parties to use at the conclusion of the settlement conference. The use of a settlement checklist can assist parties and the court in accomplishing this goal.
Comments
Published in Court Review: The Journal of the American Judges Association, 39:3 (2002), pp. 14-19. Copyright © 2002 National Center for State Courts. Used by permission. Online at http://aja.ncsc.dni.us/htdocs/publications.htm.