Compromise and Settlement

• Author: Jeffrey Lehman, Shirelle Phelps

Page 58

Resolution of a dispute by mutual agreement to avoid a lawsuit.

Public policy favors the settlement of disputes to avoid lawsuits. Parties to conflicts that might otherwise end up in court are encouraged to resolve those conflicts by mutual agreement through their attorneys, through mediators, or even on their own. A compromise and settlement can be used for many types of disagreements including contract disputes, civil disputes, labor-management negotiations, criminal cases, and DIVORCE and custody problems.

The terms of a settlement agreement do not necessarily need to be equal. One party may give up more than originally intended. However, as long as the parties agree to the terms and the court views the compromise as fair, the settlement will be upheld by the court. A settlement is considered binding, and the court views it as final and conclusive. A compromise and settlement will be put aside only if there is evidence of bad faith or FRAUD.

A valid compromise and settlement can be in any form, written or verbal. A writing is not required unless specified by statute, court rule, or the terms set by the parties. When the agreement is written, it must clearly state the intentions of the parties.

A compromise and settlement must have the same elements as a contract: parties who have the capacity and authority to agree, an offer and acceptance, and valuable consideration (consideration is something of value received or promised by one party to induce the other party to enter into an agreement).

Any party competent to enter into a contract can use compromise and settlement to resolve a conflict. There must be a meeting of minds in order to form a valid compromise; in other words, the parties must have the same understanding of the settlement. There must also be an offer of compromise and an acceptance of that offer. The offer can be made by either party. The terms of the offer must be clear and must show that the party making the offer intends to assume some obligation.

The offer can be made subject to certain conditions that must be satisfied for a valid compromise. For example, a creditor creates a conditional offer when he or she sends a promissory note for less than the full amount of a debt. If the debtor signs the note, he or she is agreeing to forgive part of the debt. If the debtor refuses to sign the note, the creditor's offer is rejected. The offer is conditioned on the debtor's signing the note.

An offer of compromise...