Settlement Counsel: an innovative strategy for managing commercial litigation files

Par Mariane Gravelle janvier 3, 20183 janvier 2018

Settlement Counsel: an innovative strategy for managing commercial litigation files

 

In her recent Canadian Bar Review article, Michaela Keet discusses the use of Settlement Counsel (SC) in commercial litigation. While this method has known a measure of success, it is still quite unknown in Canada and the U.S. There is also very little academic literature about it.

Keet defines Settlement Counsel as “a negotiation structure that separates litigation and settlement roles – allowing for the simultaneous advancement of litigation and negotiation on parallel tracks, by different lawyers”:

Since most cases settle before trial, how they settle must be examined closely to explain the pockets of sudden and passionate interest in SC. Proponents of the model point out that litigation settlements typically occur after the investment of significant resources in the management of pre-trial litigation, without full and thoughtful exploration of client needs. They argue that SC files settle sooner with lower legal and internal business costs, even in consideration of SC fees. Proponents of the model also claim that the quality of SC outcomes are superior to litigation outcomes. Practitioners employ techniques to get earlier, relationship-oriented settlements in a commercial world where relationships are increasingly valued.

Despite its benefits, this method could prove challenging for some:

Pure problem-solving models are easy to design; the challenge comes when they are linked to an endemically adversarial legal system. The SC model is a unique joinder of these two systems. As a formal alternative, it has potential, especially in large or complex litigation. Lawyers interested in applying this model to particular files will need to work closely with the client and the rest of the legal team to identify the scope of the role, fee arrangements, and an ideal communication structure.

Keet’s article takes the reader through the scope and formality of the arrangement, examines possible resistance points and presents derivative strategies – or features of SC – that could benefit negotiation.  Encouragingly, Keet writes:

Even if the model does not take root in Canada, however, important lessons can be derived from the SC experience. In this way, I suggest, its real power is as a reminder that—even in the midst of litigation—problem solving can be accomplished. The SC model employs the following values, and in so doing, constructs a set of ideals for the resolution of legal disputes, inside or outside the formal SC process.

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