About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


15 Negot. J. 11 (1999)
Using Settlement Counsel for Early Dispute Resolution

handle is hein.journals/nejo15 and id is 10 raw text is: Using Settlement Counsel for Early Dispute Resolution William F Coyne, Jr Early settlement of civil litigation is a much desired, albeit elusive, goal. As an attorney in private practice for more than eighteen years, I am sensi- tive to the complaint that lawyers obstruct settlement. Some of this criticism is justified, but much is not. Critics tend to overlook the fact that we live in a society in which both the lawyer's real incentives and the client's expectations frequently cut against settlement, particularly early settlement. One significant aspect of the prob- lem is that a lawyer is expected to settle a case while simultaneously carrying on heated litigation. This is a daunting task. In my experience, the mind-set needed to do problem- solving negotiation is fundamentally incompatible with the mind-set needed to be an effective trial advo- cate. Think of international relations: We do not expect our generals to be diplomats, nor our diplomats to be generals. One solution to the dilemma lawyers face is to separate the func- tion of settlement negotiation from the litigation function. This can be done by using a separate attorney, i.e., settlement counsel, to handle negotiation while the litigator liti- gates. A second approach is to delay the litigation so that meaningful set- tlement discussions can occur. An attorney, ideally an attorney who will not be trying the case, can attempt to find a negotiated resolu- tion before the expense and acri- mony of litigation take their toll.1 Once more, think of the interna- tional arena: At the outset of peace talks, diplomats (not generals) seek a ceasefire. A trial lawyer's temperament, training, and financial self-interest argue against such a ceasefire. The William F. Coyne, Jr. is a lawyer and mediator whose practice focuses on resolving business, con- striction, and consumer disputes. He is a partner at Lawson & Weitzen, LLP, 425 Summer St., Boston, Mass. 02210. Email: wfcoynejr@aol.com. 0748S4526/99/0100-0011$16.00/0 © 1999 Plenum Publishing Corporation Negotiation journal January 1999 11