Settlement Offers

Each year millions of civil cases are placed for litigation in the court system. Plaintiffs may initiate action against defendants on any of three levels: Small Claims Procedures (matters involving ?3,000 or less); tribunal or County Court cases (matters involving more than ?3,000 but less than ?25,000); High Court proceedings (matters involving more than ?25,000). Problems which may fall within the province of civil litigation are property/boundary disputes, bankruptcy, divorce, contracts, debt recovery, defamation and a variety of other similar issues. Due to the relatively small sums involved and to rules encouraging expedience, cases in Small Claims Procedures may be dispensed with in a short period of time. Civil litigation being tried in tribunals, County Courts or High Court may travel at a glacial pace. It may also require large expenditures on the parts of all parties. Due to money and time considerations, many cases never reach a final judgment but are instead subject to settlements.

A variety of ways exist to avoid the expense in money and time which may result from a civil action. Recent changes in civil law encourage litigants to explore settlement options rather than further clogging an already overloaded judicial system. Defendants have always had to the right to pre-empt civil action by offering to settle the dispute prior to its coming to trial. They could do this by paying the whole of the disputed amount, paying a portion of the amount to the court or subject to certain stipulations submitting a written offer in compromise. New Rules of Civil Procedure now provide both parties to the proceeding the ability to put forward proposals for settling the claim. This method of settlement is further encouraged by penalties which may be imposed upon the litigant who fails to accept a reasonable offer and then loses the case. The process of making these proposals is referred to as a Part 36 offer.

Another approach to civil litigation settlements is Alternative Dispute Resolution (ADR). ADR takes many forms. It may be an informal channel of settlement through an ombudsman or it may encompass more formal resolution processes such as arbitration. The advantages of being open to settlement through mediation are myriad. Setting up the mediation process is both faster and more flexible that wading through the court scheduling process. Many times mediation begins prior to any portion of the case having been heard in court. However, arbitration can also be useful for cases which may have already begun actual litigation.

Commonly the mediation process starts with both litigants presenting their perception of the issues in written form to an unbiased mediator. This may be followed by a meeting of both parties and the mediator. During this time each side will be allowed to verbally state their cases. Separate discussions with the mediator will then ensue with further meetings of all parties if indicated. During these meetings the litigants may choose to have counsel present to advise them on any legal ramifications of proposed agreements. Unless prior arrangements have been made to the contrary, neither party is bound by the mediation until a settlement has been reached, put into written form and signed by all petitioners.

All in all, given the staggering number of civil petitions filed each year it may be wise for persons and entities involved in litigation to seriously consider making a settlement. The time and money spent in pursuing an in court verdict can be exorbitant. In addition, new Rules of Civil Procedure may subject a litigant who refuses to negotiate to substantial penalties in the event of an adverse finding. Agreeing to submit a Part 36 offer or to participate in some form of Alternative Dispute Resolution can shorten the process, lessen the expense and avoid the possibility of financial sanctions.

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