It's not unusual for clients to ask me - "When is
the best time to try and settle this dispute?" "Should we
try early or wait until after the discovery and evidential stages
of litigation"? "Will we look weak if we offer to resolve
the dispute early?"
My experience suggests that the answers to these questions
really depend upon the importance a company places on its
relationship with its opponent, the value it places on preserving
its reputation in the marketplace, the anticipated costs of
protracted litigation, the so called 'prospects of success'
at final hearing and most importantly the ability to break down
what John Lande has termed the 'prison of
All too often we see disputes settled on the "steps of the
court" or in the hallway of the courthouse. The conventional
belief (propagated by some litigators whose interests are not
always conducive to finding a early settlement) is that by
withholding settlement discussions until the last moment we appear
strong in the eyes of our adversary and thus achieve leverage in
final negotiations. It's also indoctrinated into us that by
delaying discussions until after the discovery process we will have
a better understanding of the legal strength of our opponent. Where
the relationship is strained we sometimes doubt that our opponent
would negotiate honestly. All of this leads us to sometimes become
afraid to even explore settlement thus causing us to fall into the
'prison of fear'.
How many of those that are settled on the steps of the court
could have been settled much earlier with less cost to the
disputants' relationship, reputation and financial bottom line
but for the prison of fear? Could a superior settlement solution
been achieved had the parties taken an earlier interest-based
approach to resolving their dispute rather than a hurried hectic
position based approach on the steps of the court?
Disputants who wish to break down the 'prison of fear'
and offer their opponent negotiation, mediation or conciliation
early in the dispute can:
Avoid looking weak by advising your opponent that you routinely
consider negotiation, mediation and conciliation whenever it might
Advise your opponent that you are prepared to litigate
vigorously, if necessary, all the while negotiating forcefully and
Overcome concerns your opponent might not provide frank
disclosure and act with honest intentions by ensuring it legally
commits to do doing so. This can be achieved by the insertion of a
carefully drafted clause in the negotiation protocols or in
mediation/ conciliation agreement that compels all parties to act
in good faith and bona fide;
Avoid " giving away too much" to your opponent by
limiting your disclosure at first instance to legally discoverable
information that the other side would eventually get anyway and
hold off disclosing any sensitive information (such as your
interests and priorities) until later in the process, after you
have had a chance to assess your opponent's motives and
Remember that the discovery process in litigation is a two
edged sword in that whilst it might enable you to better assess
your opponent's legal position it also enables it to better
assess the weakness of your position; and
Remember the words of the late great US Supreme Court Judge
Oliver Wendell Holmes who once famously said: " It's a
rare litigant who recognises his case once it gets to
1 John Lande - Lawyering with Planned Early
Negotiation. American Bar Association 2011 page 5
2 Pts 1 - 4 ibid pages 6-7
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guide to the subject matter. Specialist advice should be sought
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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