Skating to Where the Puck Will Be: Exploring Settlement Counsel and Risk Analysis in the Negotiation of Business Disputes
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The infusion of ADR into legal training has been shaped by its ‘alternative’ identity, bringing with it a tendency to reinforce schisms: rights or interests, adversarial or collaborative approaches, litigation or settlement. “Either-or thinking” served its purpose in the early years but falls short especially with large-scale business files, where litigation looms and sophisticated clients expect multiple-pronged protective strategies. This article explores ways that settlement-oriented lawyers must function inside (rather than reject) the litigation regime. In particular, it introduces the author’s empirical study of two developments in the realm of business litigation: the “settlement counsel model” and the employment of litigation risk analysis methodologies. These developments are located within the larger theoretical frame for the lawyer’s work, examples of unbundled legal services and “planned early negotiation”.
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