In death avoid hell. In life avoid law courts.

As the blurb on top says, I make my living handling cases in Court. However, that's not at all the first thing I advise my clients to do when they come to me with a problem. It's not even the second or third thing, actually. My priority in each and every case is to see if it can be settled out-of-court. While that may sound counter-intuitive for a professional whose bread-and-butter is litigation, it's not. If any young lawyer is reading, bear in mind that a successful settlement leaves the parties reasonably happy (which means your client will also settle your fees with satisfaction) and it is final (which means both you and your client can get on with new work and make more money). Here is my approach:


NEGOTIATION. Call the other side for a face-to-face in a neutral venue. Start with an open mind and a warm smile. Establish that the discussions are on a "without prejudice" basis, then speak frankly to identify the areas where the parties are furthest apart. Step out of the meeting room occasionally to probe your client on the extent of possible compromise. Be ready to type up a simple settlement agreement to capture the most important terms. This can even be written on the back of a napkin. Reserve minor or technical points for detailed discussions. Chances are, peripheral or secondary issues can be settled one way or the other later. And remember, smile!





MEDIATION. Same as above, but discussions are held in the presence of a trusted independent person who will try to help the parties reach a middle ground. The mediator has no power or authority to impose a solution. For that, you will need to proceed to:


ARBITRATION. By consent, both parties submit their dispute to one or more arbitrators who, like a Judge, has been given authority to come to a decision on resolution of the dispute, using all means possible.





LITIGATION: Even though a case has been filed in Court, there is a final chance for settlement if the parties will consent to have a Judge mediate their dispute. This is an extremely important avenue to explore, and it deserves an entire blog entry to itself. Stay tuned.....


In the meantime, have a look at the West Malaysia Bar Council's coverage of the Mediation Panel at the 15th Malaysian Law Conference held in July this year. The amusing heading of today's blog post was the opening remark of the 1st speaker, Dato' N Chandran: "In death avoid hell. In life avoid law courts."