When the possibility of settling your case arises your solicitor will assess the issues and offer practical advice for you to consider. You can then instruct them accordingly. The solicitor will evaluate the risks and from experience give educated guesses on what the likely outcome may be. This would be before a barrister is involved. Usually once a barrister is engaged it is the barrister who will handle settlement negotiations.
All cases have risk, even very strong cases. If the other side know this and realise they have a weak case, the lawyer representing them, while knowing the limitations of their case, will nonetheless act as though they have a good case. So, like a game of poker, there is bluffing and gamesmanship going on and the lawyers know how to play this game. The clients sometimes lose their nerve as the court day nears but their lawyer does not and is there to fight their corner.
As the court day looms, settlement comes into the frame. It is not unusual for the parties’ lawyers to have an ‘off the record’ conversation to sound out the other side. The lawyer with the weaker case may be looking for a way to settle the case and reduce the exposure of their client. On the other side, the stronger party may be interested in hearing what the other party has to say and see if an acceptable settlement can be reached which their client would be happy with. No settlement would be made without the client’s agreement.
The party with the weaker case can save on cost exposure by settling the case and avoiding a full hearing with all the related costs. This way the strong party could agree a settlement without having to give away too much and avoid the risk of something going wrong in court.
Settlement negotiations are a skill. As I will discuss in Chapter 11, this is where barristers excel. Solicitors too engage in settlements but barristers, being primarily litigation practitioners, have more experience in this.
During these settlement exchanges the lawyer is constantly weighing up the risks, the advantages and the weak points, and evaluating whether with the changing circumstances they can get a settlement they can take back to you. The lawyer may come back to you and say the other side are offering X and they may add that they believe they can do better so they are advising you to decline. When that point arrives, there will be conflicting thoughts going through your head. You may be relieved and desire avoiding the hearing (hanging around a court can be unnerving) but try to remember the issues – do you believe you have a good case – and decide on the facts and issues of the case and not on how you feel on the day.
In settlement negotiations the lawyers are having a mini-run-through of the case in their exchanges, putting forward your strong points, responding to points made by the other side. Always one party is more eager to settle than the other but they won’t let their guard down and will continue to push for their client even though they know they are on weak ground. The skill of settlement negotiation is critical. Your lawyer is earning their fee here. Negotiation skills are honed by experience so it is the home territory of the litigation lawyer – in these parts, mainly barristers.
Before a case gets near a court hearing it is possible that solicitors representing opposing parties to a case will speak and a resolution could emerge from that; as the case nears conclusion with neither party having shown a willingness to settle it is best to leave any settlement negotiations to the experts.
If you and your legal team believe you have a good case it would be better to await an approach from the other side to settle; otherwise it could be interpreted as a sign of weakness in your case. You need to be strong and not be intimidated by any claims by the opposing side. Keep your distance from the other side. Avoid contact if possible and let the lawyers meet away from you. If you are in close proximity to the other side, in a corridor or tea room for example, avoid direct contact, referring them to the lawyers who are handling the matter. If such contact is made, tell your lawyer.
In these situations, the trust you will have built up with your lawyer in the time leading up to the case is vitally important. You must have 100 per cent confidence in your lawyer.
Settlement talks can take time; if they are on the day of the court hearing and the time has come to start the case a judge will often give the parties more time if they believe a settlement can be achieved. An outcome reached by the parties coming to a mutual agreement is much more preferable to a judge having to decide and force a decision on the parties.
In a negotiated settlement, you need to approach the process with a willingness to concede on some points. Your lawyers will advise on what these may be and what will appeal to the other party.
Clients’ ‘Do’ List
Clients’ ‘Don’t’ List