How you can enforce your legal rights, get “unstuck,” and move towards settlement, without necessarily going to trial.
Some 95% of cases result in settlement. Especially in family law, however, settlement may only occur after timelines have been set, and time pressure has had its effect. It’s human nature: people don’t want to admit they are wrong, people don’t want to pay, people resist change. Often, there is no “carrot” to make people want to agree to change.
How can someone overcome another person’s tendency towards the status-quo? That is what litigation is for.
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Negotiation and settlement is nearly always the preferred approach, because it is cost-effective, relatively fast, and gives parties the greatest (and most granular) control over outcome. Major sticking points can occur in negotiations, however, including unreasonable demands, and inaction.
Unfortunately, without a court date some cases drag on in endless negotiations, with a party continually seeming like they are going to agree, then failing to do so at the last moment. This wastes time and money, and perhaps more importantly, unnecessarily prolongs stress. The benefits of starting a court process and thereby putting the dispute resolution process on a timeline are generally that:
- a case will usually settle faster when a court process is started; or
- it is usually to everyone’s benefit to conclude litigation as quickly as possible, if a case cannot be settled.
An often overlooked avenue for settlement is through the court’s dispute resolution process.
To settle, each party should know what evidence the other side is going to rely on. They also need time to adjust their perspective. In most litigation, adjusting perspectives is a complex process: a party needs to see the evidence, understand it, understand the legal implications of that, figure out if they have any evidence which counteracts that, and then be given time to adjust emotionally to the change. In the court process, this exchange of information (called discovery) is a required step for both parties. Unlike in pure negotiation, the court process provides ways to enforce proper discovery.
A court proceeding also allows the application of any number of shrewd negotiating techniques, aimed generally at “hiving off” portions of a dispute, and therefore making the whole action more manageable, which may simply not be available without the court’s presence.
Also, one party can compel the other to attend a number of settlement-focused proceedings through the court process. These include mediation and settlement conferences.
Even when formally beginning a court process is not appropriate, it can often be a good idea to file (but not serve) an originating pleading. This often helps streamline court processes and safeguard a client’s rights by achieving clarity on expectations, and securing a more convenient (and therefore probably less expensive) court registry for further court proceedings, if they are necessary.
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In summary, starting a court process does not stop settlement from occurring. At least beginning the early preparations for a court action is generally a helpful and cost-effective way to approach settlement. Without a “carrot,” or desire to reasonably agree, the court provides a sometimes necessary “stick” to cause other parties to act. Often the carrot and the stick are complementary, and the result can be to everyone’s best interests.
Brandon D. Hastings (bhastings.com) is a lawyer and mediator. He is an access to justice advocate, believes in settlement-focused litigation, and provides unbundled services where appropriate. To get in touch, visit bhastings.com/contact, or call (604) 398-8849