Negotiating a Win-Win Settlement


The goal of any negotiation, and particularly in the legal arena of dispute resolution, is to achieve a “win-win settlement”, so both sides are relatively happy.  While as lawyers, we don’t pretend to be true experts in the arena of negotiations, we negotiate all day long while trying to procure “just compensation” for our clients in a variety of cases, or representing the defendant.  Unless we are planning on “going all the way” (trying the case and withstanding the rigors of a potential lengthy and expensive appeal), it is most often to everyone’s advantage to find “a middle ground” and settle the claims. Any other action, other than dedication to a trial, will be working with the “other side” to achieve a compromise of both parties’ positions.  Not an easy task, but a task worth the effort in most matters where resolution is the goal.

Resolving a matter, or settling, is the goal of most clients; they are not looking for divine justice and going through the stress, strain and time commitment of the normal litigation process leading to a costly and lengthy trial. The  main issue with settlement is that each side has to be ready to resolve the matter, which usually means there must be an appropriate pressure on the party with the most “clout”.  Certain cases are subject to pre-suit settlement because the parties understand that the filing of a lawsuit creates an expensive and lengthy process that often seems to have “a life of its own”.  So it is, that once the matter gets into litigation it may be a long time coming before the “big dog” is willing to come to the table with the Plaintiff.

In fact, it is “coming to the table” that makes for the potential of “win-win” possible.  Without two (or more) willing participants there can be no win-win settlement.  The points of pressure are often accompanied by a Case Evaluation, Facilitation, Mediation, Settlement Conference, Arbitration or other meaningful dispute resolution procedures where the parties are compelled, or voluntarily, participate in a settlement process.

Still, how do we get to “win-win”, when most often a “settlement” is like “kissing your sister”, meaning that no one wants to pay anything, and the Plaintiff normally gets far less than he / she wants.  So how is that “win-win”, when nobody is happy.  It may be in the details that the settlement can be forged, and that makes the parties into winners, like promptness of payment, details of the release, indemnification of other potential claims, etc.   So the parties to a dispute and those who are assigned to help resolve matters find themselves striving to resolve things and to “stop the bleeding” of costs, time and stress, so that becomes “win-win”!

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