Friday, June 27, 2025

2:10 PM - 2:55 PM

Rongomātāne Hall, Tākina

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Overview

Dave Barr, Lawyer and Mediator

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Details

In our adversarial system, significant litigation requires a party to struct the big guns. but the guns suited for firing volleys across the courtroom are ill-suited for the close-quarter combat of mediation or other negotiations. Two significant changes in the legal landscape in the past four decades have been the significant uptake in the use of mediation and increasing specialisation. Those two changes have intersected in the US in the use of settlement counsel; NZ has yet to see the benefit of specialist mediation advocates and negotiators. The use of settlement counsel in in the United States is now widespread. The benefits of using settlement counsel with specialist skills in negotiating settlements include: freeing litigation counsel to focus on their traditional role of ‘zealous advocate’; allowing a focus on wider strategic goals without diminishing the perceived strength of the legal arguments; and, leveraging specific expertise to obtain better outcomes (or, where the other party has engaged settlement counsel, avoid a disadvantage). Conversely, the uptake in use of settlement counsel in other common law jurisdictions has been slow, despite the same cost drivers. Canada has shown some movement toward increasing use of specialist settlement counsel; the United Kingdom, Australia, and New Zealand continue to rely on litigation counsel wearing the additional hats of settlement strategist and negotiator. The many hats can weigh heavy on the litigator’s head, making them less effective in all aspects of their role. The reasons for this slow uptake a varied: low levels of awareness of the settlement counsel function; a desire from clients to minimise costs (without reference to value); and, the reluctance of legal practitioners to accept that others can add value to their work. This is not to say this situation will continue in NZ. Given the recognised benefits of instructing settlement counsel, savvy innovative practitioners - especially those who have staff with experience in the US legal market - will soon start bringing a knife to the knife fight.