Every now and then a "once in a career" issue becomes "déjà vu all over again." That certainly has been the case for me lately. Over the last several years, I have found myself litigating the recurring issue of the enforce ability of a settlement agreement where one party refuses to execute the settlement papers. What's that you say? The matter isn't settled until both parties sign? Surprisingly, that's not the case.
As I've found in litigating this issue across the country, many courts agree that a signed settlement agreement is not a prerequisite to an enforceable settlement. A settlement agreement is no different from any other contract. What matters is that the parties reached an agreement on all material terms and expressed an intention to be bound to those terms. If that is the case, the documents memorializing that settlement are no more than formalities.
What does this mean for you? It means that one way to ward against the expense of litigating the enforcement of an unsigned settlement agreement is to memorialize the essential terms of settlement as soon as possible after the parties have agreed. One of the easiest ways to do this is with a clear and concise confirming email: "This will confirm our clients' intent to be bound to the following essential terms, which we agree to memorialize in a written agreement: . . . ." As those of us in litigation know, no agreement is "air tight," but a short email to memorialize a meeting of the minds on an essential term can be good insurance against an opposing party's cold feet.
As for Mr. Berra, the answer seems to be that it's "over" long before some parties thought it was "over," and certainly before the other party claims that they "didn't really say everything [they] said."
Feel free to drop into the comments with your stories of enforcing an unsigned settlement agreement.
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