Litigation is costly and messy. The risks are often gut wrenching, the outcome unpredictable and, with the prospect of appeals, seemingly unattainable. Perhaps this is why 95% or more of civil cases settle before trial, but usually not until the parties have reached the courthouse steps. This begs the question: "When settlement seems inevitable, why does it cost so much and still take so long to get there?"
Here is a proposed solution worthy of your consideration: the use of settlement counsel. Settlement counsel functions separately from your trial counsel with the sole purpose to achieve a satisfactory and expedient resolution.
Why Settlement Counsel?
"Think of international relations. We do not expect our generals to be diplomats or our diplomats to be generals." Coyne, "Using Settlement Counsel for Early Dispute Resolution," Negotiation Journal (Jan. 1999), p. 11. The message is unmistakable – hire the expert with the aptitude and attitude for the task at hand.
While trial lawyers are committed to obtain the best result through force of advocacy, settlement counsel employ different skill sets. When trial counsel is asked to lay down arms and engage in peace talks, inner conflict and ambiguous role-playing can impede progress. The combatant does not want to lose credibility with the client or the opposition if appearing too conciliatory. After all, it is the ability to concede strategically that leads to reconciliation. The problem for the trial lawyer is whether compromised positions can be regained if peace talks ultimately fail. With settlement counsel, there is no ambiguity about role-playing or your immediate objective. Your investment in settlement counsel demonstrates your seriousness and sincerity about reaching resolution. You, the client, need not be concerned, consciously or subconsciously, that your settlement counsel's ego or financial self-interest is in conflict with the settlement task. Likewise, your trial attorney will not have to worry that her sharp edge may be dulled through negotiation.
Who Should Be Settlement Counsel?
Effective settlement counsel usually emerge from the trial law discipline, leavened with experience as an Alternative Dispute Resolution (ADR) neutral and practitioner (i.e., facilitative mediation, arbitration, and case evaluation). Personal knowledge of the courts and juror characteristics can be invaluable, if only to counter your adversary's self-serving predictions during negotiations as to how the case will unfold and be received.
The business person may question whether in-house counsel or an executive experienced in the art of negotiation can adequately fill the role. Certainly, internal resources should be considered, with the caveat that an effective client representative should have sufficient separation from the origins of the conflict so as to avoid interference from emotional or political investments. Additionally, will an in-house representative functioning as negotiator have the level of history and familiarity with the presiding judge, a third party facilitator, or opposing counsel that often promotes an effective and efficient process?
If your settlement efforts will involve a third party facilitator, then settlement counsel will personally know the best candidates to mediate, and her own past experience as a mediator gives much insight in knowing how to advance the process and help the mediator do his job. Timing is often everything to a successful mediation, and knowing when the implementation of certain techniques is premature or overdue is a product of professional experience and personal familiarity with the players, which in-house counsel and the executive may not share.
In an effort to conserve costs and to contain the number of law firms being involved, the client might consider tapping settlement counsel from trial counsel's firm. That is a very personal choice. Be certain that there is not an institutional bias to fight until the foe is vanquished and to reap the bounty it will bring. This, of course, can be particularly sensitive if your trial counsel's compensation is based on a contingency or blended contingency fee arrangement. You want your settlement counsel to be brutally frank about the strengths and weaknesses of the case so that you can evaluate offers and demands. That candor may be diluted if settlement counsel's trial lawyer partner has already delivered their firm's assessment of the case.
When To Use Settlement Counsel
Early is good. But it may be too early, if the parties are still too close to the actions that led to the conflict. In any case, early involvement of settlement counsel will help you decide when to shift into settlement gear and how best to accomplish it.
In most situations, your settlement counsel and trial counsel will operate on dual tracks, i.e., the litigation continues as the settlement efforts unfold. It may seem desirable for the generals to cease fire while the diplomats do their work, and sometimes the presiding judge may accommodate this wish. If this is what the parties want, don't take it for granted or make assumptions that the court will stand down with your litigators. The most frequent excuse that judges hear for urgent requests to extend dates or adjourn trial is that the parties have been trying hard to settle, but ultimately without success.
Even if you elect to request an abeyance, be prepared for the judge's personal experience that nothing motivates a settlement like staring down an impending jury trial. The judge might be receptive to a brief moratorium if advised that settlement counsel has been retained to try to secure peace within a defined window, during which the risks and expense of continuing warfare can only distract from and complicate productive negotiations.
How To Do It.
The client's primary and major obstacle will be cost. Why hire another lawyer to learn the case and run the meter? In a significant case, the learning curve expense to add a single settlement counsel is marginal and, if settlement is achieved, more than worth the cost. The time spent by settlement counsel in negotiation should be no more than the time your trial counsel would have expended if participating in mediation or negotiation. In fact, because of your settlement counsel's expertise (and perhaps with thoughtful incentives or a budget), increased efficiencies should be realized.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
