The Art of the Deal

09 September 2018

At Acumen we always advise and strive to reach a positive settlement for our clients and we want to share that we just had our most successful month ever for settling disputes; you could say we settled more claims than had hot dinners!

Whenever a dispute arises the goal of both parties should be to reach a settlement. Settling a dispute helps to avoid the stress and time of court proceedings but can be agreed in a more flexible way. A settlement agreement can include confidentiality, staggered payments, performance of contract or other bespoke clauses.

Having a team working with you who have that tactical nous can be essential and at Acumen we have demonstrated that over the course of the past month especially. In one case we were dealing with it was essential to our client that the relationship with their EU distributor was maintained and therefore the approach taken was to accommodate this. As such we took a tactful approach which encouraged negotiation with the distributor whilst simultaneously preserving the position. In the end this resulted in an agreement being put in place that continued the relationship on good terms which was the ideal result for our client.

Comparatively, in a dispute where the relationship had broken down we took a more aggressive approach and earned a settlement for our client where they avoided any potential liability. This is because in this instance where taking the more aggressive approach, and pushing back on the other side, we asserted our own position and took advantage of this to leverage towards the settlement. In this case our client was able to be free from the burden of dealing with the exiting shareholder and director, who was putting a strain on their time and resources, and focus on pushing the business forward.

As well as the approach that is taken there are various legal mechanisms that can be utilised to protect positions, put pressure on the other side and subsequently gain an advantage in negotiations. There were numerous occasions in the past month where early offers which we made led to advantageous settlements for our clients. In a recent case we dealt with, between a service provider and their client, we had sent a part 36 offer over a year ago which put us in a very advantageous position in respect of recovering the costs incurred as well as additional costs on top of this where the offer is beaten at court. As such this position provided leverage and allowed for a settlement which included the costs our client had incurred.

Another instance of the flexibility of reaching a settlement is that retrospective terms can be incorporated into the agreement and relationship going forward such as confidentiality clauses or clauses which cover other jurisdictional disputes that may have arisen. This was particularly relevant in another case where our client and the other side who they worked together with, in respect of a joint venture. Over the course of the joint venture a number of different disputes had arisen between the parties which were also across multiple jurisdiction and we were able to put in place a settlement which covered all of these disputes in one place.

These retrospective terms are also a prevalent feature which our employment department deals with regularly. Where an employer wishes to impose terms upon an outgoing employee, a settlement agreement is an optimum place for restrictive covenants such as restraints of trade, to be incorporated. For more details and depth in respect of these we have previously written about the employment aspects here.

The main points to take away from these cases are that if there is a dispute bubbling, get on the case early. Timing is crucial to the success of your matter! Then, as important as the legal know how, is the need to be alert to the requirements and aims of your business and work towards a desirable settlement.

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