Early moves that save cash, time and reputation
The cheapest dispute is the one you design to end early. That doesn't mean capitulating; it means treating the fight like a deal with a closing plan. Senior leaders who exit litigation quickly do three things well: they surface decisive facts fast, they control the rhythm of talks, and they structure offers that are easier to accept than to refuse – without putting the company at risk.
See it as a transaction, not a duel.
Start with the commercial outcome you actually need: predictable cash out/in, protection of customer relationships, a clean release, privacy where possible, and an enforcement route if things go wrong. When you frame the dispute this way, "winning" stops being a slogan and becomes a model you can price.
Buy speed with facts.
Nothing accelerates settlement like a short, credible evidence pack. Build a dated chronology, attach the three or four documents that matter (the signed contract, change orders, delivery records, key emails), and include a simple damages model that shows how you got to your number. A tight bundle changes the other side's risk perception and gives their lawyer something to take to a client meeting besides outrage. It also allows your team to skip weeks of posturing and move straight to terms.
Decide how you'll decide.
Deals die in diaries. Name a small internal steering group with authority to approve ranges, and set a decision cadence (for example, 24-48 hours to sign off counter-offers). If you need board or investor sign-off above a threshold, get that framework agreed upfront so no offer expires while signatures are hunted.
Use process as a lever, not a weapon.
A first meeting that is structured and short beats ten letters. Propose a one-hour call with a clear agenda: issues list, documents each side will share within a week, a timetable to test settlement, and a slot held for mediation if the gap is still wide. If a single technical point blocks progress – cause of failure, specification compliance, pricing formula – send it to an independent expert for a quick written determination (binding or advisory). You're not giving in; you're removing excuses.
Make costs work for you.
In the High Court, a properly framed Rule 34 offer or tender can shift costs if your opponent refuses a reasonable proposal and later fails to do better at trial. Mark settlement letters "without prejudice" (so they can't be used on the merits) and, where appropriate, "without prejudice save as to costs" so a judge can see your reasonableness when deciding who pays the lawyers after judgment. You're building a record that makes staying in the fight more expensive for the other side than getting out.
Structure offers people can say "yes" to.
Price is only part of it. Offers that close gaps usually include staged payments or staged performance tied to milestones; sensible security (a guarantee, retention, escrow, or a notarial bond for bigger matters); mutual releases; a clause that neither party admits liability; and confidentiality/non-disparagement to keep reputations intact. If tax or regulatory approvals are in play, sequence the steps so you don't create friction you can avoid.
Protect the company while you negotiate.
Lock down access to sensitive information; keep customer messaging factual and dull; avoid grandstanding on social media. If the matter could spook lenders or investors, prepare a neutral line that confirms continuity and says nothing about blame. A steady public posture is its own settlement pressure.
Choose the right neutral at the right moment.
Mediation works best when you can trade across issues a court can't bundle – timing, cash flow, scope, IP usage, apologies or statements of regret. Pick someone who understands the sector and who pushes on numbers, not feelings. Keep the day tight: pre-exchange documents, limited opening remarks, and a demand that any settlement reached is drafted before anyone leaves the building.
A good settlement reads like a term sheet: who does what, by when, with what security, and what happens if a date is missed. For enforceability, consider a consent order (so you don't litigate the settlement later). Tie up the loose ends people forget – who pays whose legal costs; how group companies, directors or sureties are released; how confidential information is returned or destroyed; which law and forum govern any dispute about the settlement itself.
Avoid the traps.
Principle creep ("we can't back down") is expensive when the market doesn't care. So is negotiating feelings instead of numbers, ignoring tax, leaving confidentiality vague, and treating mediation as therapy rather than a closing session. Another favourite own goal: threatening "war" while quietly needing the relationship. If you need the relationship, design the deal to protect it – service credits, revised scopes, senior-to-senior check-ins for three months – rather than pretending you don't.
Ask this at every checkpoint: Are we closer to a signed, enforceable agreement than we were last week? If not, change something – facts, forum, people in the room, or the shape of the offer. Early, disciplined moves compound. By the time cases reach trial, most of the value has already leaked from someone's P&L. Make sure it isn't yours.
Want to pressure-test a settlement plan before you table it?
Barnard's litigation team can review your chronology, stress-test your numbers and help design a structure that protects cash flow and reputation while staying enforceable.
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.
