If you live anywhere north of the Tennessee border, you know that the season that follows spring is often referred to as construction season. While we Northeners enjoy some respite from the cold weather and icy road conditions in the summer, we now have to contend with torn up highways and detours to accommodate the seemingly endless road construction. 

Much like obeying road signs in a construction zone, it is important that lawyers follow certain rules when it comes to drafting settlement agreements and releases. Consider these your warning signs to pump the brakes and carefully craft your agreements to properly resolve your cases:

Authorized Personnel Only – Pay close attention to the parties identified in the settlement agreement, including who or what entities are being released. And if you didn’t draft the settlement agreement, make sure you carefully review the Recitals to make sure the parties are consistently identified throughout the document. Although it may seem like a simple step, double check this often overlooked part of the agreement so there is no room for argument about who or what entities are bound by the settlement and release.

Fines Doubled – While any financial penalties included in your agreement are not necessarily double the settlement value, you may choose to include certain penalty provisions to ensure enforcement and incentivize the opposing party to timely pay. For example, you may include an interest rate or other penalty for any late payments. Or, the parties may stipulate to a financial penalty in the event of any violation of the agreement, such as disclosure of confidential information. Consider how best to utilize these provisions to fit the circumstances of your case as they are not one-size-fits-all. 

Slow Down – Although we all typically start from a prior form when drafting a settlement agreement for a recently resolved case, don’t be lulled into thinking your same form will apply from one case to the next. Double check the boilerplate language included in your form to ensure you appropriately tailor the settlement agreement and release to your specific case. You have worked hard to resolve your case – no need to speed through preparation of the settlement agreement.

You may also consider preparing a draft settlement agreement prior to the mediation so you can be ready to negotiate pertinent terms during the session. Because you and opposing counsel and your respective clients are together and focused on potentially resolving the dispute (and have the time to do it), you can discuss certain key provisions and the clients’ expectations about those provisions to hopefully avoid lengthy post-mediation disputes. For example, if confidentiality is a critical component of the settlement, address that issue at the mediation – and with the assistance of the mediator – so you can hopefully expedite preparation and signature of the final settlement agreement.

Successfully navigating a construction zone requires you to plan ahead and pay attention. The same can be said for crafting a settlement agreement. So, obey the signs on the road to settlement. You can – and will – merge your strong legal advocacy into creative and effective settlement agreements as you resolve and close your cases.