A recent newspaper story claimed that a family had “won a settlement” in a suit against the Montana Department of Natural Resources and Conservation for damage done to their land by a scorching, and allegedly unnecessary, backfire the DNRC set. The story then mentioned the jury award.
Wait. What was it–a settlement or a jury award? Know your terms! A settlement is a voluntary agreement reached by the parties, to resolve the dispute between them. For example, in an auto accident, the defendant driver–or more likely, his insurance company–pays the plaintiff an agreed-on amount of money. In exchange, the plaintiff executes a written release of all claims against the defendant arising out of the accident. If a lawsuit has been filed, the lawyers sign a joint stipulation to dismiss the case. In a contract dispute, the terms may be more complex; e.g., a building contractor who sues for nonpayment may get paid, but will also be required to release any liens he filed against the property, and the payment he obtains may be less than he demanded, if the property owner claims that the work was defective. In business litigation, the written settlement agreements can be extensive.
The parties and their lawyers may negotiate the settlement agreement themselves or participate in a mediation or settlement conference, with a lawyer who is not involved in the case serving as mediator or settlement master. The mediator serves as Henry Kissinger conducting shuttle diplomacy–going back and forth between the two sides, conveying offers and demands, offering his or her own evaluation, and helping the parties see reason and find common ground. If a lawyer views the case differently than his or her client does, a skillful mediator may be particularly useful. Settlement conferences are mandatory in many jurisdictions, before trial and on appeal. I’ve served as an appellate mediator many times.
(The criminal counterpart is a plea agreement–which must be approved by the judge.)
Yes, a settlement is a victory of sorts–for all parties–because it buys peace and ends the litigation, but saying a party “won” implies prevailing at trial.
Say that the parties “reached a settlement.”
You’ll be right, and I’ll be happy.