Negotiating and Drafting a Settlement Agreement - Checklist

Drafting notes

This Checklist is designed to highlight issues commonly arising during the negotiation and drafting of a settlement agreement.

For guidance on how to negotiate, document and draft a settlement agreement, see the following documents:

Settlement Agreement - Checklist

For example draft settlement agreements and clauses, see Precedents:

Precedent: Settlement Agreement - IP Dispute - Short Form
Precedent: Settlement Offer for a Construction Dispute

Checklist

Issue	Key Consideration	Notes
When to seek settlement?	Ensure that settlement is a consideration throughout all stages of a dispute, including pre-action. Ensure this includes consideration of the different options available for settlement, eg direct negotiation and agreement between the parties / their legal advisers (including consideration as to whether a Part 36 offer is appropriate) or some form of assisted disputed resolution procedure, such as mediation. Check whether there are any contractual obligations on the parties with regard to settlement, eg the inclusion of a stepped dispute resolution procedure in the contract. Check whether any pre-action protocol requirements provide for settlement efforts.
Responsibility for negotiating a settlement	Who is to be involved in seeking a settlement of the dispute? What role will you take?

Issue

Key Consideration

Notes

When to seek settlement?

Ensure that settlement is a consideration throughout all stages of a dispute, including pre-action. Ensure this includes consideration of the different options available for settlement, eg direct negotiation and agreement between the parties / their legal advisers (including consideration as to whether a Part 36 offer is appropriate) or some form of assisted disputed resolution procedure, such as mediation.

Check whether there are any contractual obligations on the parties with regard to settlement, eg the inclusion of a stepped dispute resolution procedure in the contract.

Check whether any pre-action protocol requirements provide for settlement efforts.

Responsibility for negotiating a settlement

Who is to be involved in seeking a settlement of the dispute?

What role will you take?