Don't Bet the Business

The start of a lawsuit often brings with it a sense of dreadful anticipation. There is an energy, a commitment and hopefully a goal. Also present is apprehension of both the known and unknown of what is to come. 

Those who have experienced litigation know of the time, cost, intrusion and frustration a lawsuit promises. First-timers will quickly know those meanings. One sense litigants share, at least initially, is the desire to win. In this post, we will review what winning may look like.

Television and movies teach that winning a lawsuit occurs when a jury foreperson stands to read a verdict to a crowded courtroom.  One side of the room is crushed and defeated with the other side jubilantly rushing into the hallway to meet crowds of reporters and well-wishers.  Reality is different. 

A typical trial ends without fan fair, in an empty courtroom, with the lawyers on both sides knowing that the fight is not over. Clients also soon realize that, to borrow from Winston Churchill, this may be little more than the end of the beginning. 

It is important to point out that the vast majority of cases never reach a trial. They are settled informally among the parties, as a result of a settlement conference with the court, or more commonly these days through a settlement facilitation. A settlement facilitation is simply an attempt to move parties toward a resolution through meetings and discussions. The facilitator is neutral, with no stake in the outcome. The facilitator does not decide who is right and wrong. Rather, the facilitator works to help the parties see and understand the strengths and weaknesses of the case with the ultimate goal of moving both sides toward a compromise. 

Most cases settle, and most will either be voluntarily facilitated, or at the very least, a court will strongly suggest the parties consider a facilitated resolution. Before a facilitation takes place, and certainly while it is being considered as a resolution vehicle, here are five things to consider:

1. Is your litigation goal one that can be achieved through facilitation?

Lawsuits begin for a reason. When a complaint is filed there is goal in mind. Recovering money damages is a common reason to start a lawsuit, but it is not the only reason.

Parties fight for a myriad of reasons that have nothing to do with recovering money. It may seem obvious, but fully understanding why the lawsuit was filed or defended is critical to deciding if a facilitated settlement is feasible, or even possible. A settlement is a compromise; something is left on the table. 

Before a facilitation begins litigants must ask if they are prepared to walk away from one or more of the objectives the lawsuit was meant to achieve. Just as there are goals when a lawsuit begins, settlement goals also should be clearly identified.

2. Who should be the facilitator?

When considering facilitation, identifying the appropriate facilitator is perhaps the most important choice to be made. Some facilitators take training to develop helpful facilitation skills and techniques. Many retired judges take up facilitation as a second career, offering their years of brokering courtroom settlements as reason to choose them. Some facilitators have little or no settlement experience but do possess substantive knowledge of the disputed matter. Some facilitators have all of the above. 

The case can be made that an experienced facilitator can settle any dispute, regardless of the subject matter. However, an equally compelling case can be made that some disputes require a facilitator who possesses specialized knowledge in order to be effective. The point being, choosing a facilitator is not a one-size-fits-all proposition. Parties should choose a facilitator who they believe is best suited to understand and resolve the case. 

3. When should the facilitation occur?

Disputes can be settled at any time, but facilitated settlements tend to occur at certain benchmarks. Facilitations sometimes occur before lawsuits are filed; they may even be a condition precedent to filing suit by a prior agreement. Facilitations also tend to occur just after a lawsuit is filed, and before the parties are required to devote substantial time and resources to the case. 

Such early facilitations can be problematic, however, because once claims are pled, the parties’ positions tend to galvanize, at least for a while. At the very start of a lawsuit there will be many unanswered questions which tend to be initial settlement obstacles.

In my experience, facilitation is optimal after a lawsuit has had time to develop and at least some of the issues have been addressed through discovery. By then, some of the strengths and weaknesses of the case will be revealed. That is often the start of a willingness to compromise. 

Keep in mind that facilitation does not have to be single effort. A facilitation can begin before suit is filed, later continue after the issues are framed and tested, and even later still after discovery concludes. A significant consideration often is the facilitator’s schedule because the “good ones” book months in advance.

4. Who should participate in the facilitation?

This one is actually more complicated than it may first appear. There are the obvious participants – the individual client or the corporate representative that has primary responsibility for the case. For corporate clients, however, the day-to-day representative may lack the necessary settlement authority. 

Ideally, the person who can make the call should be in the room, but that is not always possible. Settlement authority my lie with a senior officer or even with a board of directors. Sometimes remote players can participate through a video link, but even that has practical limitations. 

Facilitation can also be aided through the direct participation of experts, although that comes with additional cost. At the very least, whoever does participate on the client’s behalf should possess some range of settlement authority and a means of reaching others should that authority need to be expanded. 

There is no right or wrong answer as to who should attend, but it is a question worthy of considerable thought. Have the team in the room or at least readily available.

5. What does a reasonable settlement look like?

Lastly, the most obvious question to consider before a facilitation begins is what does a reasonable settlement look like? This question often devolves into merely considering what amount of money would be accepted or paid, but successful facilitations often involve non-monetary factors, even when money is involved. 

Sometimes the structure and timing of a settlement payment is as important as the amount. This gets back to the ultimate goal of a settlement; what do you hope to achieve by ending the dispute?

To borrow a cliché, this is where you want to think outside the box. A willingness to be flexible helps, but clearly identifying acceptable settlement options is critical. There will, of course, be decisions made on the fly, but planning for an acceptable end at the beginning will make a successful facilitation all the more likely.