Bending the Truth in Mediation and Settlement Negotiations

Milton Springut, New York Law Journal

April 15, 2019

Lawyers involved in civil litigation invariably have to deal with settlement negotiations of some kind, often under the aegis of court ordered mediation. 

Negotiations involve a great deal of back-and-forth posturing about the claims in the case. 

How far can an attorney go in bending the truth – can he exaggerate, make false statements, or conceal important information?  And if he or she does, what exposure does he or she have? 

Our recent article in the New York Law Journal, Bending the Truth in Mediation and Settlement Negotiations, discusses a recent decision considering sanctions for misrepresentations during the course of a settlement conference, and the implications for lawyers involved in such negotiations. 

As discussed there, the line between forbidden misrepresentation and permitted “puffery” is murky. 

Complicating matters, lawyers’ representations during settlement negotiations implicate three different legal regimes: ethical duties under the Rules of Professional Responsibility, court rules, with accompanying possibility of sanctions, and civil liability for fraud (by adversaries) and malpractice (by clients).

Click here to get the full article.