Negotiation essentials

'One of the most basic principles for making and keeping peace within and between nations is that in political, military, moral, and spiritual confrontations, there should be an honest attempt at the reconciliation of differences before resorting to combat.' Jimmy Carter

Without prejudice

In order to be able to negotiate freely, the parties can use certain terms in their communications which prevent the other party referring to the negotiations if they break down and the parties end up going to court. Any negotiation undertaken on a without prejudice basis cannot be referred to before the judge. This is intended to encourage to have a more meaningful dialogue without the fear that this will prejudice their legal rights;

Subject to contract

Settlement agreements often go through several drafts. In order to ensure that neither party can try to argue that an early draft was a binding contract, the negotiations are often undertaken “subject to Contract”. The tag is only removed once both parties are happy with the final document.

Tomlin Orders

If court proceedings have been issued, the parties will need to draft an Order setting out what will happen to the proceedings, who will pay the costs of the action and other matters. These terms are often enshrined in a “Tomlin Order”, which imposes a “stay” on the proceedings save for the purposes of putting the agreed terms into effect.