WHAT IS A SETTLEMENT COUNSEL?
Settlement Counsel essentially guides persons toward settlement and resolution of their legal differences using recognized and proven dispute resolution methods instead of formal litigation. Perhaps an aptly succinct description of the role of a Settlement Counsel is that it is not only just about helping the parties to determine who is right in a legal dispute. It is also about helping them to determine what is right for the resolution of their dispute; hence the importance of Settlement Counsel being flexible in making available whatever appropriate dispute resolution methods that might best serve the parties in resolving the case at hand.
The predominant technique of a Settlement Counsel is to use the principles of Interest Based Negotiation to help the parties negotiate and work toward settlement. Doing so is more likely to lead them to a self developed and mutually beneficial resolution of their differences. The Great Orange Dispute aptly demonstrates the inherent benefits of parties working together to reach a settlement or resolution in this fashion.
The road to settlement and resolution usually begins with a Settlement Counsel being engaged in an advisory and evaluation role to help a party become better informed as to their interests in the matter at hand, the nature of their dispute, and their legal rights and responsibilities relating to it. This is important because disputes and legal problems often arise, and are fuelled between parties simply because of a lack of information and knowledge respecting the differences between them. The advisory and evaluation role of Settlement Counsel can also take the form of both parties engaging him or her to conduct a neutral and reasoned evaluation of the merits of their case, so that they can then decide on the best way to proceed with it. In this vein too, with the advent of more and more self-representation in our legal processes, it is important that Self-Represented Litigants are adequately informed of their legal rights and responsibilities.
Once a party or parties are familiar with the merits of their case, Settlement Counsel can play a significant role to help them partake in more effective negotiations using recognized and proven methods of dispute resolution including:
• Facilitated Negotiations and Meaningful Consultations
Negotiation is both an art and an acquired skill. We negotiate our ways, means, and needs every day in virtually everything we do. Generally speaking, we are all successful in our own right. But when it comes to negotiating serious disputes, or legal matters, not everyone is sufficiently skilled and informed on the methods and knowledge one must be aware of to be successful. Therefore, it can be very beneficial to be formally guided by a Settlement Counsel in the course of a negotiation. Facilitated Negotiation and Meaningful Consultation allows parties to effectively and efficiently express their perspectives and differences in a matter, and begin to work toward a mutual resolution. This typically involves a Settlement Counsel assisting a party with finding and organizing legal and non legal resources and materials to support their position and negotiations, and, acting as their resource and coach. To the fullest extent possible, a party can remain in charge of their own preferences in terms of the process of reaching a settlement.
• Cooperative Law Practice
Cooperative Law Practice allows parties to each engage the services of Settlement Counsel, with the understanding and agreement that formal litigation processes will not be commenced or furthered during the course of negotiations.
• Collaborative Negotiation and Dispute Resolution
Collaborative Negotiation and Dispute Resolution allows parties to each retain a designated Collaborative Lawyer committed to the Practice of Collaborative Law. Though this practice may appear to be only grounded in the area of family law, it in fact has proven itself and carries great potential for effective dispute resolution in virtually all types of legal matters.
Mediation allows parties to express their personal feelings and perspectives on a dispute in a structured process that helps them to focus and develop a self determined resolution of it. Akin to mediation is the dispute resolution concept known as Conciliation. The differences between mediation and concilation as dispute resolution methods are very subtle. In some sense however, it is said that a Mediator guides the parties toward resolution, whereas a Conciliator directs them toward resolution.
Arbitration services can be offered as an option by a Settlement Counsel if all else fails.
The above are only a few examples of dispute resolution methods used by a Settlement Counsel. They are not mutually exclusive, and in fact, are often employed in complement to each other, and can be tailored to individual circumstances, which is another significant advantage to engaging the services of settlement counsel in place of relying soley on regulatory or litigation processes to address a dispute.