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From Conflict To Resolution: When To Negotiate The Litigated Case

Jeffrey Krivis

There are two eternal truths about litigated cases: 1) There is a tremendous likelihood the case will be settled without trial; 2) The settlement could occur any time from the moment the case is filed until the eve of trial. That vacuum of time provides many favorable and unfavorable opportunities to negotiate a resolution to a case that is satisfactory to your client. It’s how you use the time that counts.

Picture a Continuum of Conflict in which we start at one end with the filing of a litigated case. At the other end of the continuum is trial. In between are various opportunities available to come to the table and negotiate a deal. Determining when to come to the table depends on your confidence in the case and overcoming the fear that the other side will misinterpret a suggestion of negotiation or mediation as a sign of weakness. Figuring out how to inquire about settlement, either through direct negotiation or mediation, also requires strategic choices.

In order to understand the current options available to a litigator who wants to settle a case, let’s first go back in history and look at the context in which cases have traditionally resolved.

What is the context in which all of this is going to happen?

Assume for a moment that you were retained to process a typical tort dispute in the 1950s. What were the obvious dispute resolution choices available to the typical litigator at that time? One option would be to contact general counsel for the defendant and offer the idea of trial or propose some kind of negotiated settlement. Generally there were not many choices in between.

Another possibility was to advise the client that the easiest approach is to make a telephone call to the other side to see if the matter can be worked out. If that was unsuccessful, the client would have been to be informed that trial was the only other alternative. The client would be reminded that our civil justice system has been successfully resolving disputes for hundreds of years, and that the courthouse is a nice place to spend some time. After all, it has beautiful cement columns on the outside, large rooms with plenty of spectator seats and of course, each room proudly displays the American flag. Most importantly, though, it is free to use almost any time. So, if the telephone call did not work, the client would be informed that s/he could go over to the courthouse with some sense of confidence that lawyers would be able to do their work, that there would be a judge there ready to hear the case, and that it could happen in a relatively timely fashion. In 1950, the system of resolving disputes would have been perceived as relatively efficient.

The Early Years of Dispute Resolution

The first generation of dispute resolution that evolved over 150 or 160 years in this country was one that said, "Look, we try to settle things, and if we can’t, we file these papers in court, and we have a forum that will take care of it."

Connection between Negotiation and Litigation

In the early years of this continuum of conflict, litigators knew that there was some connection between the process of negotiation and litigation. Whenever a litigated case was filed, like a rubber band, we would snap back and try to negotiate the case. In so doing, we would send a message that required the other side to take us seriously. After receiving the summons and complaint, the other party would realize that s/he must appear in court. This inconvenience made it a little bit easier to talk. As a result, the parties would then get on the phone and settle a huge number of cases simply by negotiating directly with the other side.

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