When it comes to legal matters, the fact is that only a very small percentage of cases actually ever have a trial.
So why should you spend significant resources, including time, legal fees, and mental energy preparing for a trial? What if your lawyer was skilled in resolving disputes through negotiation, explored settlement options earlier in the litigation process?
Fortunately, more individuals, business executives, and organizations realize that employing a settlement specialist makes sense.
Settlement Counsel for those in Mediation Outside Our Firm
If you are involved in mediation, you may want to have a lawyer to help you through the process. Mediators cannot provide you with specific legal advice, so where do you turn when you have questions? What about strategizing before an upcoming mediation session, or debriefing after a meeting?
When you are invested in the less-adversarial mediation process, you should select a lawyer that fully understands and respects the process, because a perfectly good mediation can be easily undone by lawyers who fail to understand their role, and are perhaps more interested in taking your case to court and making more money in legal fees.
Role of Settlement Counsel in A Litigation Case
It is the responsibility of settlement counsel to resolve the dispute at the earliest possible time, and under the best possible terms.
Even in complex litigation matters, the fact remains that the most likely outcome is a negotiated settlement. Just how a case gets settled and the timing of the settlement remain more elusive topics. Trial attorneys are focused on – you guessed it- getting prepared for a trial, which is a demanding process. Some trial lawyers may hesitate to bring up settlement out of concerns of appearing weak or signaling a lack of confidence in the case. There is much posturing in litigation, make no mistake.
Wearing two hats – one as trial lawyer and the other hat of negotiator – is a historically traditional role for lawyers, but does it make the most sense? Settlement efforts are frequently shuffled to the bottom of the list as the strict deadlines and stress of litigation take precedence. If you think of trial lawyers as combat troops preparing for a feisty battle, then settlement counsel would be the considered the peacemakers, attempting to negotiate an end to hostilities under the best possible terms.
Although the old-school approach was for the same lawyer or team of lawyers to wear both hats, is this the best approach? Are the adversarial skills and training of a litigator the also best characteristics to facilitate a settlement, which involves a vastly different set of skills and experience?
For many years, the trend in the legal field is more and more specialization. Trial attorneys and clients have come to understand that the role of a specialized settlement counsel makes sense in many instances. Another benefit of this bifurcated approach is that it sends a message that although the client will remain open to a fair resolution, it is not abandoning the option of a trial if necessary.
The use of settlement counsel will also ensure that attention will be focused on settlement, with the result that a case may settle earlier than if no settlement lawyer is part of the team, saving time and legal fees.
The “New” Normal – From 1985!
The role of settlement counsel was flushed out in an interesting article by Roger Fisher, the well-known author of Getting to Yes. His article was published in the Harvard Business Review in 1985, titled He Who Pays the Piper. The article is written in the format of a letter from a chief executive of a large corporation to the litigation law firm that handles their legal work.
The article is also further proof that some things move very slowly in the legal field, and that the financial incentives and pressure of law firms do not always align themselves with reaching an earlier settlement. For decision makers in business and other organizations, do yourself and your organization a favor and read the article.
Next Phase Legal LLC based in Medfield, Massachusetts, provides dispute resolution solutions such as mediation and conciliation, and legal services throughout Massachusetts. For more information about how we can help you, please call (508) 359-4043.