The role of 'settlement counsel' in the USA

The role of 'settlement counsel' is growing in the US. Unlike litigation counsel, who are engaged to prosecute or defend claims before the courts, the objective of settlement counsel is to engage in problem solving focused on the interests of the parties. In doing so, they pursue settlement by giving attention to the interests of the other side while seeking a resolution, typically through negotiation or mediation. They do not act as mediators or conciliators, but rather assist the parties in using these (or other ADR)  processes. Settlement counsel may work at the same firm as litigation counsel but, more often, the two are unconnected. Where litigation is on foot, litigation and settlement counsel may work side by side, sharing information, including settlement counsel reporting back to litigation counsel on the content and progress of settlement initiatives. This model is more likely to be used where there are no concerns about the disclosure and use of sensitive or confidential information in the course of the settlement discussions.  A more common model allows an open flow of information from litigation counsel to settlement counsel but not vice versa. This assists in fostering frank communication between the parties where they can be confident that disclosures they make in the settlement process will not be used to their detriment in the litigation.
A common initial reservation regarding the use of settlement counsel is increased legal costs. However, supporters maintain that there is merely a bifurcation of roles, assuming all litigation counsel must also consider ADR with their clients. In reality there are likely to be some additional costs due to instructing two sets of counsel as opposed to one. However, the intention is that ultimate costs savings will be made by settling the dispute early, and in an efficient and fair manner. Modified fee arrangements based on successfully achieving a resolution are also commonly entered into by settlement counsel to mitigate against concerns over increased legal spend.

The other main reservation about instructing settlement counsel is that it requires the client to 'switch gears' between fighting for his or her legal rights and negotiating a solution. In reality, however, this is always going to be the case for the client, whether they instruct one counsel or two. In some ways, separating the litigation from settlement in the mind of the client can be beneficial. A practical way to demarcate the stages for the client is for the litigation to be halted pending attempts to resolve the dispute using settlement counsel. This will of course require the prior consent and buy-in of all parties.

It remains to be seen how the use of settlement counsel develops amongst the sophisticated ADR user community but, increasingly, lawyers are marketing themselves as settlement counsel with a unique skill set to assist clients in reaching early resolution of their disputes.