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Victoria Pynchon

As the co-founder of She Negotiates Consulting and Training, I offer my services as a keynote speaker, trainer and consultant....

She Mediates

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She Negotiates

She Negotiates

The 33 cent wage and income gap is unacceptable and unnecessary. So is the cliché glass ceiling. Bottom line, our...

You've Settled? With a Term Sheet? The Devil in the Details

It's 8 p.m. and you've just spent nine straight hours negotiating the settlement of complex commercial litigation with multiple parties that was filed before George Bush first took office.  The case has been up on appeal twice and is now scheudled for trial in February.  All defendants but the final three standing have settled.   Three of the principals have flown in from out of state and two of the attorneys have driven a few hundred miles to Los Angeles from their home towns. 

"Let's just write up the deal points," says Lawyer No. 1, yawning.  "We can write up the full agreement over the long weekend."

Lawyer No. 2 turns to me and says "Judicate West has a form, right?  Let's use that."

Before we go further, let me give you the complete, verbatim language of the online skeletal Judicate West form.

Date:_________________

Stipulation for Settlement


    VS.                           

IT IS HEREBY STIPULATED by and between the parties through the respective counsel or representative of each that the above-referenced case has been settled according to the terms memorialized herein below.  This document is binding on the parties and is admissible in court pursuant to Evidence code section 1123 and enforceable by motion of any party hereto pursuant to CCP section 664.6.                                                                                   

In order to facilitate the above specified terms of settlement, the parties further agree that on or before the          day of          they will execute or change the following:

  • Settlement / Release Agreement   Prepared by _____plaintiff_____defendant

  • Request for Dismissal     Prepared by _____plaintiff_____defendant

Other____________________________________________________________

All relevant parties must sign below.  Copies are acceptable in lieu of originals.

I know.  You didn't expect the case to settle.  At least that's what I've been hearing you all tell me since hour one of the mediation.  But now we're in hour nine and the basic deal points have been reached.  It's January 15.  Trial is in 30 days.  You have all the parties present and the mediator who has by now sussed out the BS; developed a good working relationship with all sides of the dispute; knows how hard the parties worked to get here; and, is unlikely to let the "devil" in the details sink the settlement ship.

What do you do?

My own answers in next post.



Comments (3)

Read through and enter the discussion by using the form at the end
brooks schuelke - January 16, 2009 4:24 PM

I'm looking forward to your answer. As a plaintiff's atty, I can't tell you how many times I receive a post-mediation agreement drafted by a defense lawyer with terms (confidentiality, indmenity, etc) not part of the mediation agreement. Most times these things get worked out, but it can be a real problem.

Gavin Craig - January 18, 2009 8:15 AM

Rule 1: Never ever leave the mediation without a written agreement that can stand on it's own. Otherwise the chance of the deal falling apart will increase with time.

I recently settled a case - and the agreement was signed - although hand written - and the other party later wanted a more formal agreement. Which I guess meant not handwritten. They kept trying to slightly change the deal - and I refused. We finally, after a lot of wasted time, had a written (typed) agreement. Since my client was making a relatively small payment, but the other side wanted a "more formal" agreement - we just refused to make payment until the "more formal" agreement was executed.

The other attorney cost their clients time, money and delay. We were happy with the agreement as it stood. The new agreement was essentially identical because I refused to agree to additional terms. I'm sure many attorneys have similar stories of attorneys insisting on more formal agreement when the hand written agreement is perfectly good.

Vickie - January 18, 2009 12:49 PM

Thanks Gavin.

Haggling over unimportant terms in the agreement often becomes a matter of "face" for the attorney or, worse, retaliation for having obtained a deal that is worse than they wanted.

When you seal the deal complete in the mediation, it's more difficult for the attorneys to allow THEIR fight to prevail because their clients are present and the parties exercise a moderating influence on counsel.

When the mediator is assisting, the mediator can also help the attorneys "frame" the deal in as good a light as possible to improve a relationship that is sometimes hurt by the settlement.

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