Do I need a lawyer or Can I settle now and see my lawyer later?
After enduring several years of a soft economy and trying times for businesses and individuals alike, people more and more seem to be attempting to fight their battles and resolve their disputes without hiring lawyers and without availing themselves of the judicial process. A lawyer’s time can be expensive, and can add up quickly, and the disbursements incidental to litigation can also add up. However, before entertaining thoughts of representing yourself, either inside or outside of the Court process, and resolving matters with “the other side” you should know that if a settlement is struck, if you have agreed to resolve the matter, dispute or claim on specific terms, you may well be stuck with it, as prudent or as imprudent, as that settlement may be. You will probably not be able to play the “I didn’t have a lawyer” card and start afresh.
There are several indisputable legal principles regarding settlements:
1. An agreement to settle a claim is a contract – nothing more, nothing less;
2. A party’s agreement to the essential provisions of a settlement is not conditional upon the execution of either Minutes of Settlement or a Release;
3. No party to a settlement is bound to execute a complex or unusual form of Release;
4. If one party to a settlement presents a form of Release that is not acceptable to the other then there must be further discussion regarding the form of that Release but neither party is excused from the terms of settlement itself unless the party presenting the Release insists upon terms or conditions contained in the Release which were not agreed upon or which are not reasonably implied by the circumstances of the settlement.
To establish the existence of a settlement the usual law of contract applies. An offer, an acceptance and consideration. Simply, to establish the existence of a contract the parties must demonstrate a mutual intention to create a legally binding relationship and the document, whatever it may be, evidencing that contract, must contain agreement on all of the contract’s essential terms.
While settlement implies the promise or undertaking to furnish a Release, unless there is agreement to the contrary, the execution of Minutes of Settlement and/or Release do not make or break the settlement once struck. In other words, agreement by the parties to the essential provisions of the settlement is not conditional upon the execution of either Minutes of Settlement or a Full and Final Release. An oral agreement may in fact be binding.
The provision and execution of a Release is implicit in a settlement however the terms of the Release must reflect, and only reflect, the agreement reached by the parties. If one party presents a Release that is not acceptable to the other then there must be further discussion regarding the form and content of the Release and if that cannot be agreed upon either party may then refer the matter to a Court to enforce the settlement as struck.
Were one of the parties simply to walk away from the settlement and then commence formal legal action, the other party may bring a Motion before the Court for Summary Judgment for an Order imposing the terms of the settlement together with an Order for costs as against the party who resiled from the settlement.
Whether or not a party to a settlement, or settlement discussions, is represented by a lawyer may well have absolutely no effect on the validity of the settlement reached. Whether the settlement is routine to one party and not the other or whether a party is a lay person, not legally trained and ignorant of the legal consequences of that settlement, it may not be relevant to the validity of the settlement. In the vernacular, “a deal is a deal is a deal”.
A deal, once agreed upon, once struck, is binding and everlasting. It will be enforced by our Courts. Therefore, when entering into any deal, any bargain, any contract, any settlement, one must be sure, confident and knowledgeable as to the agreement one is reaching and the obligations one is thereby undertaking and the rights or opportunities or things one is sacrificing. If not, one may have little recourse, receive little sympathy, from the Court and it will not be enough for that one to say “I didn’t have a lawyer”.