Law and Psychology

SO, WHY SHOULD I SETTLE?

“SO, WHY SHOULD I SETTLE MY LEGAL DISPUTE?”  HERE ARE 6 REASONS:

Before you (or, if you are a lawyer or paralegal, your clients) say “no!” to settling a lawsuit (or pending lawsuit), carefully consider the reasons for saying “yes!”:

  1. RISK

There are no “slam-dunks”. Every case is risky. If you can’t accept that your case, or any part of it, is too strong to fail then at least accept that sometimes (just sometimes) the judge or jury “gets it wrong”.  Therefore, even if you are certain, lawsuits are inherently uncertain. Settling on terms which are short of your (and the other side’s) best-case scenario is rational since: a) A 3rd party decision maker is taken out of the equation, leaving those who know their own case best to craft the outcome, and b) No one suffers their worst-case scenario at Court.

  1. TIME

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The Stoic Lawyer: Just What the Emperor Ordered

This article originally appeared, in an abbreviated form, on the Canadian Lawyer Magazine website.

 

The legal profession can meet modern challenges by embracing the ancient philosophy of Stoicism.

JUDICATORIUM

IN THE MATTER OF:

Lawyers

v.

Themselves and Others

REASONS FOR JUDGMENT

MARCUS AURELIUS J.

Introduction

The author, a lawyer, argues that Stoicism benefits his profession. He presents his argument in a form his colleagues might recognize: A judgment written by an experienced person of authority. Suspend your own judgment about the fact that I, Marcus Aurelius, the last of Rome’s “five good emperors” – and the world’s most famous Stoic [1] — have been dead for almost 2,000 years: As our people like to say: “De minimis non curat lex”.[2]

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The Designated Settler or: How I Learned to Stop Litigating and Love Mediation Joint Sessions (Playoff Edition)

Introduction

I wrote the original version of this article in the Spring of 2016 – close to the beginning of baseball season. An expanded two-part edition followed in the early Summer. As at the time of writing of this new, one-part edition, the Toronto Blue Jays just clinched an American League Wild Card spot with home field advantage. By the time you read this – or attend the ADRIC 2016 Conference in Toronto – hopefully (well…I hope), the Jays will still be in the playoffs. If not, you might still be in a baseball frame of mind depending upon your allegiances – or you may not like baseball in any event. Either way, I may soon begin work on a new edition using hockey and basketball as metaphors  (soon to be followed by editions based on running, yoga, and just lying on your couch watching Netflix and eating chips).

The Designated Settler

In addition to practising as a mediator, I regularly attend mediations of civil disputes as Settlement Counsel – a lawyer who settles cases through negotiation as early as possible, rather than gradually preparing them for a hearing on their merits[1]. As Settlement Counsel I approach mediation differently than when I was a conventional litigator. This is best reflected in how I participate in joint sessions and make opening statements at mediation – two things that I used to loathe as a litigator, but have now (dare I say it) grown to love — or at least like on most days.

Batter Hitting Baseball --- Image by © Royalty-Free/Corbis

Since Settlement Counsel is still a relatively new concept in Canada, I will explain the position further by using a baseball metaphor. This is appropriate since I have already used the word “cap”[1] above. Think of Settlement Counsel as a DH (Designated Hitter). While for close to 20 years I also played a fielding position (trial, discovery, motions, appeals, etc.), I now restrict myself to what I enjoy the most, to what I believe I do best and to where I can make the most useful contribution to my team (my client’s case): negotiating settlements. If I can’t get a base hit (i.e., make some progress toward settlement) or, better yet, score a run (settle) in a particular inning (stage of litigation), then I sit in the team’s dugout until my next ‘at bat’ later in the game. Read more →