Q: We went to mediation. The mediator (a retired judge) kept saying that compromise is OK; you could lose, you will spend all that money — better to have a solution now and be done with it. Since we feel we are victims of misconduct by the other party, and have provable losses, why should we compromise?
-B.C., Monrovia
A: There is a saying: “A good settlement sends the parties home equally unhappy.” So if the parties reach a money settlement, one side feels it paid too much, and the other believes they got too little. Compromise in any given instance may be sensible, pragmatic and smart. Most civil claims are a gamble. When a client tells me he or she is doing the case “on principle,” I put it into my mindset, but know that attitude might be the client’s undoing. On occasion, I have seen cases where it seems very clear who is going to win, but winds up the opposite. As such, compromise involves weighing whether it is wiser to forego the risks, or continue dealing with the pros and cons of going forward. Compromise is not a dirty word; it a choice that carefully takes into consideration a number of important factors.
Q: We are going to settle a case, and want to be sure it is over once and for all. Is there language to make sure to have in the settlement agreement so we are done with this completely?
-P.H., Torrance
A: Yes, there is language that is very important to have in the settlement agreement. One clause that is often included is a waiver of California Civil Code Section 1542, which reads: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” Bottom line, you want to have release language that waives Section 1542 so that claims, known, unknown, suspected, or unsuspected, are gone. Further, if appropriate, the releases should be applicable to you, your agents, heirs, devisees, attorneys and insurers, among others.
Ron Sokol is a Manhattan Beach attorney with more than 35 years of experience. His column, which appears in print on Wednesdays, presents a summary of the law and should not be construed as legal advice. Email questions and comments to him at RonSEsq@aol.com or write to him at Ask the Lawyer, Daily Breeze, 400 Continental Blvd, Suite 600, El Segundo, CA, 90245.
