Settlement Counsel is a key member of the litigation team, often utilized in addition to the law firm that is retained to litigate a lawsuit. Settlement Counsel is an outside lawyer who is retained for the purpose of facilitating resolution of a dispute.
Negotiation is a distinct skill from litigation. Settlement negotiation is a skill that requires an aptitude for understanding complex legal and financial issues, and navigating high-emotion. Utilizing the skill of negotiation to arrive at a meaningful, valuable, and lasting resolution that outperforms a litigated outcome is the role of Settlement Counsel.
An article published in the Journal of Dispute Resolution advocates for the hiring of separate Settlement Counsel for business disputes. The advantages of hiring Settlement Counsel include preserving relationships, reducing cost and time to resolution, and overcoming adversarial bias.
Often when a client hires an attorney to resolve their dispute, they want the attorney to take an adversarial position towards the other side to prove that the client’s position is right. An attorney hired to fight for their client’s rights becomes the client’s zealous advocate. This puts the litigating attorney in a prosecutorial role, where positional thinking is engaged and the dispute is defined in strict legal terms. In the heat of the conflict, thoughts and ideas for creative problem solving are often forgotten.
Settlement Counsel, however, are free to think more freely and creatively about options for settlement. Settlement Counsel generally keep the client’s business issues front and center. This is especially critical in today’s business climate where companies that create a culture focused on building and enhancing relationships tend to flourish. Companies’ litigation portfolios often concern matters such as employees, customers, vendors, suppliers, contractual partners, etc. Continuing these relationships are paramount to a company’s success and when conflict erupts the need to preserve these relationships is crucial.
This is why Settlement Counsel is a valuable member to the litigation team. Settlement Counsel differs from the role a mediator would play in that, unlike a mediator who is hired by both sides of a dispute and is required to remain neutral, Settlement Counsel is hired by only one party, and is not neutral. Acting in the client’s best interest, settlement counsel seeks to create a maximum value outcome for their client.
Settlement negotiations can be initiated at any stage in the litigation or pre-litigation process, although as an advocate of early dispute resolution, we prefer to begin negotiations as early as possible.
As an experienced litigator who has spent most of her career focused on negotiation and early dispute resolution, Ellie Vilendrer is uniquely qualified to offer her expertise as Settlement Counsel. Ms. Vilendrer’s complete bio can be read here.