Add Your PerspectiveOctober 17, 2008
In You Can Win by Settling Halfway: Settlement Structures Part I, we discussed when it might pay to settle halfway — when you might resolve parts of a dispute to “streamline the matter, limit expenses, and refocus the parties on resolving what’s left.” While Part I outlined several high-level examples of how it works in theory, here’s a successful example to demonstrate how settling halfway can work for you.
What’s Really in Dispute?
I got called into a dispute between my client at the time and a recently departed executive. The former executive disagreed with the compensation he was paid as he left. Like many claims involving former execs, the stakes were high, and the emotions ran higher. Both sides wanted to prove that they were right, and the case would not settle. Once I really understood each side’s position — on the facts and in the broader context — an opportunity to settle halfway began to emerge. More…
Add Your PerspectiveOctober 10, 2008
“If you are going to do a half-ass job, don’t do it at all.” My dad gave me that advice years ago, and I never forgot it. But if you have an important dispute, settling it halfway may be a victory in itself.
“Settling halfway” isn’t complicated; it’s just what the name implies. In disputes where you aren’t ready — or able — to settle the entire case, look for ways to eliminate parts of it to streamline the matter, limit expenses, and refocus the parties on resolving what’s left.
The Idea Behind Settling Halfway
After several years of defending what was then KPMG Consulting, I had one of those “aha” conversations with an outside counsel I really respect. As we brainstormed on how to eliminate some of the inefficiencies inherent to litigation, he reminded me of a difference between our perspectives: in-house litigators are free to ignore “unnecessary rabbit trails,” skip secondary witnesses, and forego tactics that have little likelihood of success, while most outside counsel feel compelled to leave no stone unturned — and they usually need written confirmation for the file when they abandon anything. More…
1 PerspectiveOctober 7, 2008
Have you ever had a dispute over an amount that was too small to litigate but too big to leave behind? These are some of the most difficult issues to resolve; they can strain the attorney-client relationship and occasionally, they test the bounds of common sense. Before you file that lawsuit, consider whether non-binding arbitration can help you avoid the irrational.
Although I didn’t know what it was called at the time, non-binding arbitration came in especially handy for me in a dispute my client had with an insurer a few years ago. The matter was the last, minor claim on a long list the two had fought out, and who was really “right” in this case isn’t really relevant at this point. The more important facts were: (i) the amount in dispute wouldn’t support a full-blown lawsuit; and (ii) despite the modest quantum, a lawsuit remained likely given the egos involved and the broader relationship between the parties.
Stumbling into Non-Binding Arbitration
I searched for a way to get a judgment on a smallish case with complicated facts, and it couldn’t be done here. More…