How to Settle a Case Out of Court: Tips for Businesses
You never know when you might need assistance with Employment Tribunal litigation.
In fact, 90% of businesses are involved in some form of litigation at any given time. Commercially, you shouldn’t necessarily be thinking about how to win a case if it goes to a full hearing, unless there’s a point of principle at stake, or you don’t want to send out the “wrong message” to others who might sue you in the future.
In reality, you should be considering how to settle a case out of court. A settlement is often much faster and less expensive than going to trial, and it can save you a lot of grief. Here are some key things to keep in mind.
1. Put the issue into perspective
Before you do anything else, it helps to put the issue in perspective. Or rather, think of any concessions either side has to make, as part of the larger benefit of reaching an agreement outside of court.
In the midst of a dispute, it can be difficult to see things from someone else’s angle and make concessions to keep them happy. You should remember that settling out of court won’t work unless both sides can reach an agreement, and that involves settlements and concessions.
2. Keep good records
Of course, you don’t want to give up your entire case before you even start. Whilst you can argue almost anything, you’ll need records as evidence to support your claims.
Sometimes, it’s not about arguing for one case or another, as often enough, disputes happen because someone just doesn’t remember exactly what happened.
Records are the easiest way to remind people of past contracts, agreements, and obligations.
Maintaining good employee records is a good example of this, as is maintaining a folder of email exchanges.
3. Appeal to a sense of fairness
The truth is, most people are reasonable, even in the midst of a legal dispute. If you’re trying to settle out of court, you need to make the best use of everyone’s common sense.
If you’re trying to negotiate a settlement, it’s a process of negotiation. It’s a give-and-take scenario.
If you want the other party to give something to you, appeal to their sense of fairness with a trade. You may be willing to pay a certain amount in damages in exchange for the other party agreeing to a “full and final” settlement, including but not limited to confidentiality obligations.
It may not feel like a deal at the time but remember tip number one. If it’s a choice between paying a settlement over going to court, the settlement is typically the more expedient choice.
4. ACAS and/or Judicial Mediation
You have a few options before going to trial.
Firstly, ACAS is an independent body set up by the government to help resolve disputes. They are neutral and act as a “go-between” the parties to facilitate a resolution without the need for a final hearing. In most cases, as part of the Tribunal process, the Claimant has to go through the early conciliation process via ACAS before being able to lodge a claim. Even if this fails, ACAS are available to assist the parties in resolving the dispute until the Tribunal makes a final decision.
Judicial Mediation is a method of alternative dispute resolution (ADR) in which negotiation is facilitated by an Employment Tribunal Judge. This can only happen if both parties want to take part in the process and the Tribunal agrees to provide the service.
As a rule, mediation is designed as a hands-on, task-based process. Since the two parties cannot reach an agreement with each other, the mediator facilitates the exchange of information and the negotiation process. They also help mitigate unrealistic expectations on either side.
The goal here is to smooth out communication enough that an agreement can be reached, but the mediator doesn’t make the decision on your behalf.
5. Assume the best and keep your cool
Finally, regardless of how upset you may be by the circumstances, arguing with the other party won’t help resolve your dispute.
If you go into the settlement process with an adversarial mindset and seek to show that the other side was wrong, it will be difficult to have any kind of productive communication. Instead, go into the process assuming that everyone involved is acting in good faith and is just as interested in reaching a resolution as you are.
Even if you are angry or upset, don’t take it out on the other party or their legal representation. Avoid making personal attacks at all costs. It won’t accomplish anything other than inciting the other side to attack in turn, and this exchange isn’t conducive to a successful negotiation.
6. Figure out how to settle a case out of Court
Regardless of your case or the specifics of how to settle a case out of court, your best chance at a successful resolution is having a good legal team on your side.
Centurion Legal provides quality, timely legal and commercial advice to businesses, whether you’re making high-level terminations or defending Employment Tribunal cases.
If you need legal advice, don’t wait. Use our contact page to get in touch today.
DISCLAIMER: This document is intended to be a guide to the current law only. It does not constitute legal advice and you are not entitled to rely upon it. You should always take proper legal advice relating to your own situation before acting.