VOLUME 1, ISSUE 1
The most interesting aspect of litigation is that every case that goes to court has a winner and a loser. Unlike a corporate deal, for example, where it is in the interests of both parties for a transaction to close, the stakes are much higher in litigation because there is never a way that either party can guarantee a result. This is why such a high percentage of litigation cases ultimately settle before trial – parties simply want their potential risk to be minimized by entering into a final and binding settlement.
Given the fact that so many cases settle, I find it interesting that there is so little written about how litigators and their clients can reach practical settlements. With that in mind, I present:
SHAWN PULVER’S 5 KEYS TO REACHING PRACTICAL SETTLEMENTS:
1. ENGAGE SETTLEMENT
Always attempt to engage settlement discussions before litigation escalates. It always amazes me that parties could litigate for months, and lawyers may never have spoken to each other about a possible resolution. Whether I am Plaintiff or Defendant counsel, I always try to engage the other lawyer early on in the process to see if there is any potential for a resolution. As long as discussions are without prejudice, there is no harm in talking.
2. EARLY MEDIATION
Always mediate early on in the litigation process, when possible, especially if you do not expect any new information to arise from the examinations for discovery. Mediation is now mandatory before trial, so why not try to utilize the process before all of the parties have incurred significant costs?
3. MAINTAIN CIVILITY
Always maintain civility with opposing counsel. This is extremely important. You can still advocate strongly for a client while maintaining a sense of civility with opposing counsel. I have settled many complicated and difficult cases in a much more efficient manner because I was on good terms with the opposing counsel.
Good lawyers are able to advocate strongly for their clients, but at the same time not lose sight of what is in their clients’ best interests, which often times is reaching a commercially reasonable resolution.
4. CHOOSE APPROPRIATE MEDIATOR
Take the time to pick the appropriate mediator. It is important that the parties agree on a mediator that everyone will respect and listen to. If you are litigating a condominium dispute, for example, the parties will respond much better to a mediator with specific condominium experience than someone with a general mediation practice. Parties have been listening to their own lawyers for months, and sometimes a fresh perspective is important.
5. STRATEGIC SCHEDULING
Be strategic when you schedule your mediation. For example, if you are Plaintiff counsel, try to mediate on Fridays. I have seen many cases settle on Friday afternoons when defendants run out of interest in fighting, and would rather go enjoy their weekend. It is a small point, but something that parties do not often think about.