Out-of-the-Box Thinking

It pays to get creative when it comes to obtaining settlement resolutions. CLM’s Alternative Dispute Resolution Committee offered up some ideas on how to do so in a recent webinar.

April 16, 2017 Photo

12:00:00 p.m.

Robert Freedman, trial lawyer and partner at Tharpe and Howell LLP

Elizabeth Ganiere, general counsel for Gulf Stream Coach Inc. 

12:02:11 p.m.

Elizabeth Ganiere
“Sometimes what happens is that cases that should be settled don’t fit into a mold of typical litigation. They hum along instead, in need of some creative or out-of-the-box thinking and problem-solving skills in order to reach settlement. We’ll discuss some ways they can be structured.” 

12:05:26 p.m.

Robert Freedman
“In the legal context, creativity tends to manifest itself in developing strategies for evidence and presenting the case. In the context of resolving cases, it’s more about identifying and developing an exit strategy that finds the thread of commonality between the two parties in order to make the deal happen.” 

12:07:38 p.m.

Robert Freedman
“The art is being able to create and craft a resolution between the parties that stays within the rules but maybe pushes the boundaries a bit…and create rules that govern conduct in relationships in the future.”

12:13:06 p.m.

Elizabeth Ganiere
“When you want to make a deal, you have to rally around the decision makers and set your goal. Is it to get the case settled early? Or determine how much money to spend? Once you do that, you can begin to get creative in order to get the deal done.” 

12:20:37 p.m.

Elizabeth Ganiere
“The best way to sell an out-of-the-box creative idea to stakeholders is to communicate using analogies, examples, and setting practical reserves, not step-reserving some of these complex cases. You can do this when you’ve reviewed the [details], valuation, and the litigation map of previous cases.”

12:31:31 p.m.

Robert Freedman
“Quite frankly, we could probably have a whole webinar just on dealing with documenting settlement agreements, particularly those that are outside the box that deal with not only past disputes, but also future issues. It’s important to get the file closed, but the insurer wants protection from future risk.”

12:33:39 p.m.

Robert Freedman
“The big gorilla in the room on any creative settlement that involves not only resolving past claims, but also future relationships is going to be identifying the claims that are not being released. Those carve-outs are critical and need to be expressly stated in the agreements.” 

Want to hear more? 

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About The Authors
Eric Gilkey

Eric Gilkey is vice president of content at the CLM, and serves as executive editor of CLM magazine, the flagship publication of the CLM.  eric.gilkey@theclm.org

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