n South African Law Journal - Settlement and the law




Should reaching a settlement agreement after negotiations be a private matter immune from public or judicial scrutiny? This article seeks to show that, far from being an insulated process, the process of reaching a settlement, and the actual content of settlement agreements, is impacted upon by the law and public policy in diverse ways. Parallel to the law of contract are dynamic forces which mould the ethics and practice of reaching a settlement and, once reached, increasingly subject it to scrutiny. The article first considers the legal status of settlement agreements. It then looks at three related themes of the settlement process: the regulation of the ethics of negotiation, the duty to bargain in good faith, and the obligation to attempt mediation to reach a settlement. It also considers the impact of the law on the settlement agreement, considering judicial review of both the settlement process and the settlement agreement. It considers the mandate of lawyers as negotiators, before concluding with some remarks about possible future directions.


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