Negotiation Flashcards
What is the difference between mediation and negotiation?
Negotiation is carried out by the parties themselves without a third party
What happens to agreements reached by negotiation?
They are subject to contractual principles and must have offer + acceptance + clear terms
What is a joint settlement meeting?
Somewhat between mediation and negotiation - most used in PI - attended by parties, law + insurers.
Do negotiation agreements have to be in writing?
No, but it is common for parties to make that a condition of the process.
What must lawyers be in order to act in negotiations?
Agents with [express] authority to settle
What are the 2 things terms of negotiation must be clear on?
(1) whether client approval is required and (2) clear as to when an agreement is reached
When does a negotiation agreement bind?
Immediately upon agreement unless the terms specific subject to later events
Why does enforcement of negotiated agreements vary in method?
It depends on what the terms were and were not clear on. Can be possible to enforce without new proceedings
Who can prompt a joint settlement meeting?
They can happen on agreement of the parties or by court order.
Must a negotiation regard all things in dispute?
No - can agree on individual items OR an overall agreement. It’s also okay to agree on overarching issues (heads of agreement) before details are worked out.
Do lawyers have implied authority to settle in negotiations?
Yes, so settlements they reach are binding on clients unless there’s prior agreement to the contrary
Can the court enforce terms of a negotiation not recorded in court orders?
No, further judgment would need to be sought to enforce terms not sufficiently included.
What are joint settlement meetings protected by?
Protected by without prejudice privilege. What is said cannot be used in other proceedings.
