Litigation avoidance

Litigation avoidance

14:44 26 May in Blog, Commercial Dispute Resolution, Dispute Resolution & Litigation, Keith Hardington articles, Walker Foster

Many are adept negotiators in daily life and in business but require help when negotiating a commercial dispute.  When you have exhausted your own efforts to negotiate let us apply our skills, knowledge and commercial realism in negotiating on your behalf.

Here is a common scenario.  One side instructs a lawyer who takes a robust approach in support of his client.  The other side’s lawyer responds equally robustly.  Much (expensive) correspondence is exchanged and eventually the parties get round to exchanging evidence in the form of documents and written witness statements.  A strong case may no longer look strong in the light of the evidence now available and the other side’s case suddenly seems plausible.  By this point the parties are knee deep in the quicksand.  If a party stops its case it will have to pay at least its own costs and possibly the other side’s costs as well.  So they press on to trial at the risk of complete submersion.

Negotiation is communication intended to reach a compromise.  Yes you read that correctly.  I do not suggest ‘victory’ as the sensible objective to dispute resolution.  Everybody loses something in litigation, so don’t insist on absolute victory in negotiation; win/win if you can.

The process involves examining the facts, revealing the common and opposing interests of the parties and then bargaining to solve as many issues as possible. Preparation is absolutely essential.

What are the parties’ needs and assumptions?  It is incredible how much money will be spent in litigation before the parties have any real understanding of what really lies behind each other’s case, what risks they face and that there are ways out. A catalyst to focus minds is usually required such as trial or a formal mediation but a meeting around the table at an early stage can also achieve this.

A desire to negotiate is not a sign of weakness.  It is strength.  It is not necessary to wait until you’re up to your knees in it.

I may be talking myself out of work here but as another wise US President said, “Discourage litigation.  Persuade your neighbors to compromise whenever you can.  As a peacemaker the lawyer has superior opportunity of being a good man.  There will still be business enough.” (Abraham Lincoln).   –

Keith Hardington

Keith Hardington

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