SETTLEMENT COUNSEL: AN INNOVATIVE STRATEGY FOR THE MANAGEMENT AND RESOLUTION OF COMMERCIAL LITIGATION FILES
Keywords:settlement counsel, settlement, litigation, commercial litigation, business litigation, negotiation, in-house counsel, legal costs, fee structure, settlement approach, unbundling, collaborative law
Settlement Counsel is a negotiation structure that separates litigation and settlement roles—allowing for the simultaneous advancement of litigation and negotiation on parallel tracks, by different lawyers. Although widely viewed as successful among its proponents, the settlement counsel model is not yet common in Canada. This article discusses the results of an interview-driven study of a small cohort of lawyers in Canada and the United States, describing the diverse ways that the settlement counsel model has been employed and highlighting its benefits and “resistance points” that have impeded widespread use. Reflections are offered as to how settlement counsel ideals might be used to construct responsive, client-centred approaches in lawyers’ work: using client interests as a compass and employing risk assessments, mutual incentives, and accountability for results inside negotiation.