Litigation is full of risks, known and unknown, and it can potentially be very costly if you go to trial and lose.  However there are a plenty of options if you want to avoid these risks and settle your case.  Some can be used before proceedings have commenced, some while proceedings are ongoing and there are even some which can be used post-trial (as long as judgment hasn’t been handed down).

Options for settlement

This blog considers three of the most common methods of reaching settlement – Part 36 offer, settlement meetings and mediation.  It illustrates a few of the key differences between each settlement method, when they might be used and explains some of the advantages and disadvantages of each.  The blog finishes with some additional top tips to help you reach settlement.

Part 36 offer

This is a written offer complying with Part 36 of the Civil Procedure Rules, which means that it will carry with it certain consequences if the other party doesn’t accept the offer and you achieve a result which surpasses the amount of your offer.  This gives Part 36 offers a bit more ‘bite’ than a regular settlement offer.

Part 36 offers can be made either before or during proceedings, but you will need the Court’s permission to make a Part 36 offer less than three weeks before trial.

The advantage of a Part 36 offer is that it is a simple, low-cost and flexible option.  However, the effectiveness of your Part 36 offer depends heavily on making it at the right time and pitching it at the right value to put the other side at risk.  Other methods of settlement can provide more certainty of reaching a settlement.

Settlement meeting

This is a semi-formal process in which the parties attend an impartial venue and present offers of settlement to each other, generally over the course of a day.  They will usually sit in separate rooms (although not always) and their lawyers will convey the terms of each offer.  Each party will have time to consider the offer and make proposals for any counter-offer, until a mutually agreeable settlement is reached.

Typically, there will be at least one settlement meeting during the course of the case.  The best time for this to take place is ordinarily after the pleadings have been filed but before the parties begin preparing for trial.

Settlement meetings can be a highly effective method of reaching settlement because the discussions take place in-person and you get to see assess your opponent face to face.  Also, because more offers and counter-offers can be made throughout the day, the likelihood of reaching agreement is greater.  One disadvantage is that your legal team will need to attend so this option will probably be more expensive than a Part 36 offer.

Mediation

In many ways similar to a settlement meeting, this is a more formal type of settlement meeting where an official mediator will be present and have responsibility for conveying offers between the parties.  A good mediator will also investigate the merits of each parties’ case, point these out from an independent standpoint, and encourage each party to reach a settlement.

Mediation can take place at any time before trial.  Having a mediator can help to reach a settlement, and an early mediation (if successful) may avoid protracted and expensive legal wrangling.  The downside is that a mediation is yet more expensive than a settlement meeting (as there are additional mediator’s fees) and even the best mediator cannot ultimately force a settlement on the parties if they are not willing to compromise.

Recording the terms of settlement

If you have reached a settlement, then congratulations to you, the hard work is almost over.  Here are two top tips on what to do next:

1. GET IT IN WRITING – however you have reached your settlement, you will want the terms to be recorded in writing. Depending on the circumstances this might be done with a Court order (such as a consent order) and/or through exchange of correspondence.  Alternatively, if proceedings haven’t been started, a contractual document may be more appropriate. Further, a legal deed may be preferable in the circumstances. Your solicitors can advise you on the best option.
2. CONFIDENTIALITY – any document that is filed at Court will become part of the public record and therefore potentially viewable by anyone. To avoid the terms of your settlement becoming public, you can use a form of Court order which simply records settlement having been reached, with the actual terms of settlement in a separate agreement/deed with usual confidentiality provision.

Conclusion

No matter how strong you think your case is, my advice is to always ask your solicitor about your options for settling your case – you will be surprised how often you can be better off avoiding the risks and uncertainties of the litigation process.

Tom Burton Wills is an associate in Grosvenor Law’s commercial litigation team where he advises on large scale disputes