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Cover A Practical Approach to Alternative Dispute Resolution

17. Reaching a Settlement  

This chapter focuses on key aspects of the final stage of the negotiation or mediation process: reaching a settlement. An agreement reached through mediation or negotiation is essentially a contract. As such, contractual principles will apply, and oral or email exchanges may be binding. To avoid problems, it is important to be clear about process. It is also necessary to check the coverage and detail of a potential settlement fully. A potential agreement may be undermined by a failure to agree detail as the settlement process goes forward, or due to tactics in the final stages. Ultimately, it is very important to finalize the terms of an agreement at the end of the settlement process, perhaps building in terms to assist enforcement or implementation.


Cover A Practical Approach to Alternative Dispute Resolution

13. The Negotiation Process  

This chapter explores the negotiation process. Good communication skills are very important for effective negotiation. Each negotiator should make clear any limits on authority, and whether any settlement will be subject to client approval. Indeed, agenda setting and opening are important in gaining control of a negotiation. It is normal to move through each issue reasonably systematically, making best use of information, analysis, and presentation. It is also important to deal with concessions, offers, and demands effectively to get the best outcome for the client. The negotiator should be able to identify the problems that can arise in a negotiation process and the techniques that may be used to overcome them. If a negotiation is successful, an oral contract is reached; the terms should then be clarified and recorded. Even if the negotiation is not successful, progress may be made with regard to the case.


Cover Contract Law

6. Assembling the contract  

Representations, terms, and incorporation

This chapter considers how the courts determine what the terms of the contract are, both where the contract is in writing and where it is oral. It first examines unwritten contracts, focusing on oral negotiations and how the courts identify which statements, out of everything the parties said and did, were intended to have contractual force. It then discusses three categories of statements made by the parties: statements that are ‘mere puff’, statements that are factual ‘representations’, and statements that are intended to be contractual terms. It also describes written documents, and more specifically what impact the existence of a written contract has on other terms which a party argues were agreed, but which were not written down in the contract. The chapter concludes by looking at incorporation and the criteria the law sets for holding that external terms were validly incorporated into a contract.


Cover Legal Systems & Skills

12. Negotiation and mediation  

Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard

This chapter provides guidance as to how to conduct a negotiation and a mediation, and explains the difference between the two. It explains how, why, and when a law student might require these skills, and how to further develop the skills for professional practice. Advice is given about how to prepare a negotiation plan.