Fairness the New Winning Strategy

By: Riley Busenlener, CPA/ABV, ASA, AEP, JD

Winning a dispute does not require an extreme position, despite what current times would have most believe. An extreme position is not likely to be in either the client’s or attorney’s best interest.

Your client probably does not want to be involved in litigation. If the dispute is a divorce, your client wants it behind them. If it is a business dispute, your client wants to be running the business, not dealing with the litigation. Litigation causes clients heartburn. Clients know that litigation is slow and expensive. Litigation often costs your client more than time and money; it often costs them relationships.

Making a reasonable, transparent, fair settlement offer can meet your client’s needs and exceed expectations. If a fair offer is presented and explained to both parties, the chances of a settlement increase dramatically. Your client can save time, money, heartache, and potentially relationships by ending the dispute fairly.

Attempting to settle a dispute in such a manner can also suit the attorney’s interest. If successful, the attorney might not get the hourly fees associated with going to trial, but that is short sighted thinking. If the dispute is resolved quickly, fairly, and inexpensively, your client is going to bring future disputes to the same attorney. That same client is going to refer people to “their attorney.” Putting the client’s interests first is a good business decision.

Fairness is subjective. Disputing parties do not share the same notion of fairness. What many clients fail to realize is that at the end of litigation, what is fair will not be determined based on their notion of fairness, but by a third-party whether that be a judge or an arbitrator. If the parties can understand that their dispute will be decided from a third-party’s perspective, then they should be more agreeable to accepting a fair, reasonable settlement offer.

One often overlooked aspect in trying to reach an early settlement is the reputation of the expert. Too many experts take the extremist approach, advocating for their client through their opinion. Such opinions are rarely ever fair, and the opposition is likely to see the settlement offer as a nonstarter. Finding an expert known for being fair is key. Furthermore, the expert must not appear to be biased in anyway. The expert must also be able to not only clearly explain their opinion to the parties, but the expert also must make sure each party feels as though they have been thoroughly heard. Only then might the parties accept that the settlement offer is in each of their own best interests and resolve their dispute.

Even if the process fails, most clients will hold the attorney in high regard for the attempt to resolve the matter quickly, particularly when the judgment is close to the original settlement offer.