Successful Settlements

An excellent Osgoode Professional Development program took place on 26 November- Successful Settlements: Strategies & Tactics for Civil Litigators.

To my mind it highlighted the divergence developing within the legal profession in Ontario.

Several of the speakers addressed settlement methods including mediation, second pre-trials and strategies for getting to yes. They emphasized the psychology of settlement discussions, and the therapeutic value in giving the parties the opportunity to vent their feelings on the issues. One speaker reported how she was thanked by a party who said until that point, “I spent thousands of dollars and no one had heard what I have to say.”

Others favoured allowing parties to pursue their rights in law, to have their day in court, if they choose that path. Some spoke of the public interest in the resolution of private disputes through the development of the common law. One quoted extensively from a 1984 paper by Yale Law professor Owen Fiss, “”Against Settlement”.

While several speakers maintained that a litigator can also mediate, there is the view that the two roles are separating into different camps of practitioners with different skill sets and goals.

This was well illustrated by a panel on emerging issues in the settlement process: “When Two Heads Are better Than One”. Their presentation illustrated how the two roles can be allowed to operate in a complementary way, through the use of “Settlement Counsel” in conjunction with “Litigation Counsel”.

My suspicion is that over the next decade out of the general body of litigators will emerge a smaller, boutique group of litigation practitioners whose practise is restricted to the traditional litigation role. They will not handle mediation. Their fees will be predictable (not open ended hourly rates), and proportional to the amount in issue. Their clients will be those who choose to have their disputes determined according to law.

An interesting question is: will procedural rules and judicial attitudes try to prevent this evolution, by imposing procedures such as mediation and second pre-trials on all litigants?


  1. There are definitely litigators who want nothing to do with mediation. Whether they develop into some kind of (self-)defined specialist all-in litigation bar is a separate question. But even if they do, why should the justice system support them, just because some parties want to start at the all-out-war stage and some lawyers want to fight for them?

    The ‘procedural rules and judicial attitudes’ might fairly stand in their way on the ground that the publicly-funded dispute resolution system should aim to resolve disputes, not provide a guaranteed fighting place. Even parties who come unwillingly to mediation often end up resolving their disputes.

    Maybe the all-in fighters should take themselves and their barristers to arbitration, where they make their own procedural rules and choose their own judges.

  2. I completely agree with John O’Sullivan and his observations of a “divergence developing within the legal profession”.

    The best way to reach a settlement is to schedule a trial. I enjoy conducting the trial, which is why I have restricted my practice to trial counsel work for lawyers and law firms. I am pro-mediation, but I don’t enjoy mediation in the same way as trial and would prefer to work with settlement counsel who handle and enjoy mediation.

    A prevalent approach these days seems to involve lawyers starting litigation with a view to moving the case to mandatory mediation and one or more pre-trial conferences, assuming no trial will ever happen. When it becomes apparent that litigation counsel is actually settlement counsel, the value of the client’s case is diminished because there is no credible threat.

    Specialisation is linked the “divergence” and it’s probably best for clients if lawyers clearly define their role: settlement counsel, litigation counsel or both. Both roles are necessary so clients can make an informed choice between two doors: settlement or trial. And clients may be best served by having separate settlement counsel and litigation counsel to fully explore and advise on both options.

  3. Thank you John Gregory for this spirited comment.

    The reason the justice system should support parties who want their disputes resolved according to the law is that predictable, knowable and enforceable law is central to the public interest, and has been for centuries. So is the evolution of law through judicial precedent.

    What use is law if you can’t enforce it? What happens to law then?

    I don’t deny there is a public benefit to resolution of disputes, or that recourse to the law should not be the only path. But if parties do choose recourse to the law, it should be facilitated, not impeded.

  4. Ronald J McCloskey

    The role of litigation counsel under our system of justice is to resolve legal disputes. It follows that litigants will be best served by counsel who are in a position to make informed predictions as to the coursee of litigation and the likely outcome of a trial. Advised by competent counsel as to litigation costs and the risks inherent in the trial process, having regard to the law and the probability of establishing a persuasive factual base on the anticipated evidence, the client is in a position to make an informed decision as to compromise and settlement, whether at a mediation or pre-trial or at any time.

    On that basis I do not see how a client can settle optimally when represented by “settlement counsel” detached from litigation counsel. As in matters of war and peace, resolution is often achievable only under the credible threat of war, or in this case trial. Appointing settlement counsel is arguably akin to waving the white flag prematurely; it is not calculted to produce the best settlement. Of course the client can hire two separate lawyers, as on the English barrister/solicitor model, but that would not be cost-effective.

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