Oftentimes parties reach settlement agreements during the course of a court-conducted settlement conference or private settlement conference. In order to ensure a private settlement agreement is enforceable, make sure the agreement is reduced to a writing and signed by both parties. If the agreement is reached in the presence of the court, an oral agreement is sufficient. The authority for enforcing settlement agreements comes from California Code of Civil Procedure §664.6, which states,
“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court upon motion may enter judgment pursuant to the terms of the settlement.”
This section helps to ensure one party cannot unilaterally decide they want to renege on their agreement. However, not all settlement agreements can be entered as a judgment. Either the agreement must be made “before the court” (judge’s chambers and arbitration both count as being before the court) or reduced to a writing and signed by both parties.
Settlement agreements reached before a mediator do not count as “before the court,” therefore, if an oral agreement is reached, make sure the agreement is reduced to a writing and signed by both parties before you leave the mediation. And I recommend putting language in the agreement that states the terms of this agreement are binding and intended to be enforceable under CCP §664.6.
Finally, to avoid one party setting aside the agreement for failure to comply with Family Code §2015(a) (statutory deadlines for serving the Final Declaration of Disclosure), the settlement agreement should include a mutual waiver of the Final Disclosure requirement pursuant to Family Code §2015(d).