Anyone that has ever negotiated anything knows the oft repeated phrase “the devil is in the details”. In my experience as a mediator, I have found that often the parties or their lawyers leave until the very end what are often times significant and important terms of the settlement. I am not suggesting that this is intentional. In fact most times I believe the terms left until the end are terms that the proposing party is so familiar with that it actually is just an afterthought to bring them up. They assume that these terms are understood because they are so familiar to them – and you know that maxim about what happens when you assume something.
What are these devilish details? The most common one that I encounter is a confidentiality/non-disclosure provision. Such clauses are common place with many corporations but not always viewed as implicit by the plaintiff’s bar. I have seen tempers flare when the parties believe a settlement has been reached but then learn that the defense wants confidentiality which has not been mentioned all day. If confidentiality/non-disclosure is going to be a required term of any agreement bring it up at the start. Better yet, if you are representing the party that is insisting on confidentiality bring a draft of the provision you are going to propose so the other side can have a chance to review it during the mediation.
Another common detail in the employment context are non-disparagement clauses, no re-hire provisions and the details of any reference letter. All of these are important to the overall settlement of an employment claim and deserve serious discussion at the start of the mediation and throughout the mediation session.
What are some others? If the paying party wants to discuss payment terms or payment over time obviously that is something that should be discussed from the beginning. Likewise indemnity and hold harmless clauses as well as liquidated damages provisions should not be left until the end of the day.
While the parties may not want to discuss the terms of settlement until a dollar value settlement has been reached the mediator should make sure these provisions are on the table right off the bat. It is very easy for the mediator to inquire of the parties, either in joint session or in the initial private caucus, whether there are other terms of settlement such as the above that need to be discussed.
As always, if you have questions please let me know.