Dispute resolution can occur in one of two ways: judgment or settlement. “Alternative” dispute resolution speaks to the means by which parties to litigation can get to a settlement through mediation or perhaps arbitration. While it is possible (and sometimes necessary) for parties to consent to a Judgment as part of the settlement process, the document evidencing a negotiated settlement is a settlement agreement: the Minutes of Settlement.

Parties to an estate dispute choose their own path to settlement. And between a lawyer and client, the challenge is to find a place where the recommendations of the lawyer dovetail with the instructions of the client. A big challenge in most cases is to walk the fine line between finding the most cost-effective resolution while also maximizing the result for the client. If the decision is made to forego settlement at mediation and go to trial, risk assessment becomes the major consideration: what happens if you lose, what happens if you win and what are the prospects of success?

If the parties choose to mediate, the focus is squarely on the role of the mediator and the negotiation strategy. The best mediators will say that they have no stake in the outcome of the mediation. While this is true, the reputation of a mediator is forged by getting the parties to come to a settlement. As such, the mediator has a very powerful influence on parties who are looking for a way to settle a case. But sometimes, cases simply will not be capable of settlement at mediation in the best interests of the client despite how strongly the mediator will try to “get the parties to yes.” In these cases, the mediator has a stronger desire to see the parties to settle then to decide if it is the “right” settlement for both parties.

Lastly, negotiation strategy is a complex assessment of the legal and factual strengths and weaknesses of the case. However, an additional factor is simply the approach that the client may wish to adopt. Counsel to the parties at litigation do not have a monopoly on negotiation strategy. Sometimes a party may be informed by their personal experience or their particular knowledge of the opposing party. Or sometimes the client may have researched independent sources on negotiation strategy such as Never Split the Difference. It is suggested that these considerations may be equally or even more important than the factors that inform the lawyer’s approach to negotiation strategy.

Thanks for Reading!

David Morgan Smith