When trying to settle a legal dispute, it is often helpful to move away from a discussion of who was right and who was wrong, either in relation to the law or the parties’ underlying conduct. Arguing about who is right and who is wrong is useless when there’s no judge or jury to declare a winner. And, as a practical matter, it is extremely unlikely that one side will convince the other to accept its legal position wholesale—no matter how correct or persuasive that position is.
So, what do you focus on instead? Consider how both sides could be better off by settling rather than taking their chances in court. The goal of a good settlement is to place the parties in a position superior to that of litigation. So, invite the other side to join in the pursuit of this goal by appealing to their practical and business sense, not their command of technical arguments or their desire to win. This win-win strategy was successfully used in the settlement between AIG and two of its former executives, which relieved both sides of the crushing legal costs and allowed them to continue with their businesses.
The key is to be forward-looking and focused on the positive (how both sides can start to benefit), not backward-looking and focused on the negative (how one side was wronged by the other).
For practical tips on negotiation and case settlement, turn to CEB’s California Civil Procedure Before Trial, chap. 46.
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