IN my experience keeping a settlement private and confidential is of immense importance and value. You need lawyers to properly formulate and record the terms of a settlement.
The mediator is not responsible for producing the terms of the settlement just for getting the case settled. The fine detail is the role of the parties’ lawyers. It usually occurs at the end of a long day of negotiation, when they are beginning to get tired and irritated. It can take hours to agree.
IN my experience keeping a settlement private and confidential is of immense importance and value. You need lawyers to properly formulate and record the terms of a settlement.
The mediator is not responsible for producing the terms of the settlement just for getting the case settled. The fine detail is the role of the parties’ lawyers. It usually occurs at the end of a long day of negotiation, when they are beginning to get tired and irritated. It can take hours to agree. For me, as the mediator, it is a tense time; I am trying to stop minor detail blowing the deal off track.
So imagine, the case went to mediation and you are now close to a negotiated deal. You cannot believe it but you have managed to reach a compromise. What a relief. You have avoided the public arena of a trial and the unwanted publicity that goes with it. You have saved a fortune in legal costs by mediation and avoided hideous stress levels. Congratulations. To me this was a normal day; what I was paid to do; not at all a surprised; it was a great process and you both engaged and you got your deal. It was clear neither party would have got what they needed from a trial. The concern switches to keeping the settlement a secret.
After all it`s been common knowledge that you`ve been involved in a case, a nasty fight and at the point of settlement you are thinking ‘so do I need to do anything to make the settlement confidential… or will the agreement reached be an end of the case?’
Well the answer is yes, you do need to get your lawyers involved and the reason is because once you start proceedings under the Civil Procedure Rules (CPR) anyone… that means any person… without any connection to the court action can obtain copies of statements of case, or orders settling cases and other documents which have been filed by a party and are on the court record.
In some cases the parties really do not care about confidentiality. In the majority neither side wants their deal known as generally a deal might be viewed by mischief-makers as a climb down; where the receiving party received less and the paying party paid more. You will probably at this point begin to break out into a cold sweat at the thought of the settlement being discussed in the golf club and wish that you tried harder to settle the dispute during the pre-action stage.
But on the day of the deal you can still protect yourself. The quickest, cheapest and more certain way of maintaining confidentiality is much easier. You need to use what is called a Tomlin order which states a stay of the action and to direct the parties to where the settlement document can be accessed if needs be in the future… which is not on the court file and well away from public gaze. Clever stuff!
We do litigation and deliver realistic settlement solutions either by negotiation or by acting as mediator with the minimum of time and expense and while always looking after your reputation.
Christopher Cox Solicitors and Commercial Mediators welcome being of service.
