A settlement agreement’s preclusive effect is perhaps its most definitive feature, as it allows disputing parties to reach final accord, firm in the knowledge that they can avoid the expensive and time-intensive intervention of the courts. Thus, it is axiomatic that during settlement negotiations, a primary goal of the attorneys involved is to ensure that the parties are, in fact, conclusively bound by the settlement agreement.
At the same time, the process of negotiating settlements is often long and rigorous. Interim compromises and conditional accessions abound, while factors such as the client’s finances, non-dispositive court decisions, and information revealed by discovery can change the calculus upon which a settlement agreement is based. Because settlement negotiations are tenuous and conditional in nature, it is as important to guarantee that a provisional agreement remains that way, as it is to ensure that a confirmed agreement is in fact final and binding.
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