1-3 of 3 Results  for:

  • Keyword: settlement process x
  • Legal Practice Course x
Clear all

Chapter

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.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

16. The Mediation Process  

This chapter discusses the mediation process, which is flexible and can be tailored to the needs of the parties. When the mediation begins and ends can often only be ascertained by examining the intention of the parties from the facts and circumstances of the case. A typical mediation will go through four stages: opening, exploratory, bargaining, and settlement. It will take place in a mixture of joint open meetings and private separate meetings of the parties. First, the opening statement by the parties should be addressed to the other side. The mediator will then help the parties to work through deadlock in the bargaining phase. Ultimately, the advocate in mediation should harness the mediator's skills and work with the mediator to further their client's interests.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

23. Recording Settlement  

This chapter explores the process of recording a settlement, which is the final part of the alternative dispute resolution (ADR) process. It is essential that all the issues between the parties are covered in a settlement agreement. If particular issues are deliberately left out of the agreement, or are left for further agreement, this should be made clear. The normal rules of contract law must also be adhered to, or the settlement will not be binding. While oral agreements are usually binding, the risk of misunderstandings means that it is invariably best practice to record the agreement in writing. The chapter then looks at the different methods of recording settlement agreements, including exchange of letters, contract or deed, interim order, consent order, and Tomlin order. Ultimately, when drawing up the agreement, it is important not to overlook how any existing proceedings are to be dealt with and on how the costs are to be paid.