Phase Eight: Settlement Discussions
There are several times during a lawsuit where a settlement phase can occur, and in some cases, it can happen at more than one juncture. There are some commonly recognized times in a lawsuit when settlement is more likely to occur. Those times are at the outset, just prior to significant discovery becoming due, when a dispositive motion is pending, just prior to expert discovery, and “on the courthouse steps.” At each of these stages, the parties may feel the pressures of litigation and associated costs, as well as the uncertainty of the outcome, and such pressures should be carefully considered when deciding whether to settle or proceed with costly and unpredictable litigation.
Each case is different, and therefore it cannot be generally predicted if or when a settlement discussion phase would occur in any particular case. How a settlement discussion phase is commenced is also something best decided on a case-by-case basis. No one wants to communicate weakness in a lawsuit, and that general fear often keeps parties from talking. Nonetheless, there are times when raising the issue of settlement can and should be done without any suggestion of weakness, and the savvy litigator should seize those moments for the benefit of the client. Any prudent litigant should at least consider settlement if the risk associated with going forward is significant.
Recently, there is a trend to try to settle lawsuits by use of a mediator. A mediator is a person trained to assist parties in settling their cases. Mediators do not have the power to decide any issue in the case. Mediators generally have training and experience in getting parties to see all the risks involved, and in finding solutions. Not all cases are right for mediation, and if a case is right for mediation, the proper time for a mediation needs to be determined based on the unique situation presented.
Settlement is always within the exclusive control of the parties. You cannot be forced to settle. If you don’t like the terms being offered, you can reject them. Settlement, however, is the only way you can control the outcome of the lawsuit. Without settlement, the case is resolved either by dispositive motion, or by trial. No matter how good your attorneys are or your case may appear, there is always uncertainty.
