Crafting effective settlement agreements : a guidebook for attorneys and mediators

With the majority of legal disputes being resolved in settlement, crafting strong, enforceable settlement agreements is critical. Most attorneys prepare to negotiate their case, but few get ready to write an effective settlement agreement that optimally addresses all of the issues between the parties and comports with statutory requirements. Crafting Effective Settlement Agreements: A Guidebook for Attorneys and Mediators identifies the many elements of preparation, from drafting proposed settlement agreements prior to negotiations, to reviewing boilerplate provisions with language that may be contradictory to the provisions unique to the settlement negotiated, to identifying desirable non-monetary terms for the settlement of "money only" cases, such as indemnity and confidentiality clauses and clearly enforceable payout schedules. Effective settlement agreements convert the risks, delays, and expenses of lawsuits into solutions that the parties choose for themselves. This single, comprehensive volume provides valuable guidance for attorneys regarding the process of drafting settlements as well as the substantive terms required for enforceable agreements. An essential resource, this convenient desk reference will help attorneys and mediators: - Explore principles to follow to ensure an optimal drafting process and result for settlement agreement- Avoid potential traps during the preliminary settlement agreement process- Understand the legal requirements for settlement agreements- Navigate complex interpersonal dynamics of people with opposing interests- Analyze the practical implications of proposed contractual terms- Identify problematic settlement agreement terms- Explore ethical issues faced during the settlement agreement process- Draft an effective, binding, and enforceable settlement agreement

• Foreword p. ix
• About the Author p. xi
• Acknowledgments p. xiii
• Chapter 1 Introduction p. 1
• A The Value of Craftsmanship in Settlement Agreements p. 2
• B Guidance for Attorneys p. 3
• C Guidance for Mediators p. 5
• D Settlement Agreements in a Nutshell p. 7
• E What You Will Find in This Book p. 10
• Chapter 2 Ten Principles for Crafting Effective Settlement Agreements p. 15
• A Principle 1: Preparation Is Essential for an Effective Settlement Agreement p. 17
• B Principle 2: Identifying the Available Settlement Options May Itself Facilitate Agreement p. 58
• C Principle 3: Panles Must Agree on All Material Terms for the Agreement to Become Valid p. 71
• D Principle 4: Continue to Employ the Communication and Facilitation Skills Used to Reach Initial Agreement When Drafting the Settlement Agreement p. 80
• E Principle 5: The Parses Themselves Should Be Actively Involved during the Drafting Phase p. 86
• F Principle 6: Emotions Will Play a Key Role in Whether a Party Accepts the Proposed Settlement Agreement p. 91
• G Principle 7: Instead of Adjourning after an Initial Meeting of the Minds, the Better Approach Is to Continue to Make Progress Toward a Final Agreement p. 99
• H Principle 8: Many Problems Can Be Avoided by Carefully Reviewing the Settlement Agreement Before It Becomes Effective p. 104
• I Principle 9: Anticipate That You Must Put the Initial Agreement Back Together Again Before Achieving a Final Settlement p. 116
• J Principle 10: Think of Settlement as a Process That Continues Until All Terms Are Fulfilled p. 126
• Chapter 3 Preliminary Settlement Agreements p. 133
• A Advantages and Perils of Preliminary Settlement Agreements p. 134
• B Selecting the Right Type of Preliminary Settlement Agreement p. 136
• C The Impossibility of Knowing Which Factor a Court Will Find Determinative of Whether the Agreement is Binding p. 140
• D The Binding Preliminary Settlement Agreement p. 142
• E The Nonbinding Preliminary Settlement Agreement p. 147
• F The Binding Agreement to Negotiate Over Nonbinding Terms p. 153
• G Mediator's Proposal as a Binding Preliminary Settlement Agreement p. 156
• H Correspondence as a Binding Preliminary Settlement Agreement p. 158
• I Conclusion p. 161
• Chapter 4 The Written Settlement Agreement p. 163
• A Context p. 165
• B Payment and Transfer of Property p. 181
• C Release of Liability p. 203
• D Terms Providing Additional Value to the Parties p. 234
• E Judicial Approval, Enforcement, and Dismissal p. 263
• F Interpretive Aids p. 288
• G Problematic, Unnecessary, and Incomprehensible Terms p. 294
• H Making the Agreement Take Effect p. 302
• 1 Unintentionally Valid Settlement Agreements, and Accidentally Negated or Modified Settlement Agreements p. 313
• Chapter 5 Settlement Agreement Checklists p. 319
• A Detailed Checklist for Preliminary and Final Settlement Agreements p. 321
• B In Praise of Brevity p. 348
• C Short Checklist for Preliminary and Final Settlement Agreements p. 352
• Chapter 6 Oral Settlement Agreements p. 355
• A Is There a Valid Oral Settlement Agreement? p. 360
• B Oral Agreements Stated on the Record in Open Court p. 361
• C Out-of-Court Oral Settlement Agreements p. 364
• D Conclusion p. 366
• Chapter 7 Problematic Settlement Terms p. 367
• Chapter 8 Selected Ethical Issues Relating to Settlement Agreements p. 377
• A Ethical Issues for Attorneys p. 382
• B Ethical Issues for Mediators p. 392
• Chapter 9 Conclusion p. 407
• Appendix p. 409
• A PrizeCo v. Cathatrin (Breach of Contract Hypothetical Settlement Agreement) p. 409
• B Daven v. Douglas (Medical Malpractice Hypothetical Settlement Agreement) p. 415
• C Jeffener v. Vostferous (Employment Hypothetical Settlement Agreement) p. 424
• D Miyoshi v. Statena et al. (Personal Injury involving a Minor Hypothetical Settlement Agreement) p. 430
• Index p. 439