pexels oleg magni 2058130

Negotiation Or Litigation | Employment Law

Popular culture depicts lawyers and other legal professionals as constantly engaged in litigation and representing clients in courtrooms. As fun and dramatic as lawyering seems in media, those representations do not capture the reality of what lawyers often do and what can be done about a legal issue in most negotiation cases.  

Most legal professionals spend most of their time negotiating and settling cases outside the courts– a matter proceeding to full trial is rare. This is especially true for employment law, as wrongful dismissals and related issues are usually not as complicated or involve high damage awards such that litigation is warranted.  

However, this begs the question: is it better to negotiate or litigate a legal matter? 

What Is Negotiation In Employment Law?

Negotiation is a time-tested strategy of coming to a private and confidential arrangement between parties to resolve a legal dispute. Offers to settle a matter are exchanged between lawyers until a resolution is reached. As settlement discussions are “without prejudice,” such offers are usually inadmissible as evidence in most legal proceedings. 

Negotiations are usually confidential, meaning only the parties involved in the negotiation would have knowledge of the matter or any terms of a settlement. This provides a level of certainty to both parties that the sensitive and potentially damaging information being discussed will not be made public during negotiations or after settlement. 

Money cannot fix everything. Many individuals commence legal proceedings for monetary damages but much of the time want apologies, non-monetary remedies, and other relief a court would not be able to award in practice. Negotiations can cater to these unique desires and interests because the terms for settling a matter only need to be legal. Parties can agree to settle a dispute on any number of terms, creating plenty of opportunities for creative and more satisfying resolutions for everyone involved. 

Money does not grow on trees either. While some may feel their matter would be resolved in their favour if brought before a decision-maker, they do not always understand the extensive cost of navigating the legal processes to do so. Negotiation in most cases allows for a resolution of a legal dispute before reaching the more costly steps of litigation, such as discoveries or preparations for trial. In many cases, lawyers negotiate some or all of their client’s legal costs incurred up to the date of settlement. 

While there are many advantages to negotiation, its likelihood of success is contingent on all the parties’ willingness to negotiate. Negotiation can be delayed or outright fail if one or more parties to a matter refuse to discuss a settlement. The only recourse for the party seeking damages and other relief is litigation where negotiation fails. 

What Is Litigation in Employment Law?

In its simplest form, litigation is “taking legal action.” It is a process for individuals to resolve their dispute in a court of law. There are various ways one can commence legal proceedings to enforce their legal rights or seek remedies. In Ontario, a party can initiate a civil action by filing, issuing, and serving a statement of claim. 

While many parties may negotiate before a legal proceeding is formally commenced, an ongoing legal battle with projected costs and risks for parties to consider arguably creates some urgency to settle. Many negotiations and settlements occur only after a party commences a legal proceeding. Litigation can give a party’s settlement position “teeth.” 

Litigation inherently involves some negotiation, which in some cases may be built into the legal procedures themselves. In Ontario, the Courts award higher costs based on Rule 49 Offers to Settle, which are effectively settlement offers that can result in higher cost awards if the party making the offer gets a more favourable result than what they offered at trial. Further, civil actions commenced in Toronto, Windsor, and Ottawa requires the parties to attend a facilitated negotiation called mediation to attempt resolution of their matter. In this way, parties are not entirely foregoing negotiation by pursuing litigation.  

It is not uncommon for individuals to pursue litigation for higher damage awards than what they would compromise for in settlement and to have their “day in court.” A successful party in many types of litigation can also have their legal costs awarded on a scale of the most common partial indemnity (some costs), the uncommon substantial indemnity (most costs), and the extremely rare full indemnity (all costs). 

Despite the advantages of litigation, it can also be extremely costly, take a long time for a matter to be decided and stressful for all parties involved. It is not uncommon for parties to run out of funds before reaching trial and being forced to settle due to the lack of funds to move forward. These issues of high legal costs and procedural delay are widely acknowledged as barriers to access to justice in many jurisdictions.  

Litigation or Negotiation – Best of Both Worlds

Like many legal questions, the answer to whether it is better to negotiate or litigate a matter depends entirely on the facts of a specific case. However, it is undeniable that using negotiation and litigation together can achieve more favourable results than either approach independently. 

“Litigation” is an increasingly common phrase used to describe the general approach of using both negotiation and litigation in different ways to resolve legal disputes. This approach can use more or less of either negotiation or litigation as necessary but uses them both to overcome their independent weaknesses for resolving matters.

For example, a party can use litigation to put pressure on another party to come to the negotiating table and make serious good-faith offers to resolve the matter. As another example, a party can use tactful and diplomatic negotiation to settle a case that would have negative consequences for the defending or responding party should the matter proceed to trial. 

Both negotiation and litigation have their practical uses for resolving matters, but neither is better than the other in all scenarios. Using the strengths of negotiation and litigation together to overcome their individual weaknesses is typically more effective than either approach alone. 

Contact Us

Whether you are an employer or an employee looking for assistance with workplace or other legal issues, our team of experienced employment and human rights lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.

If you are a small or medium-sized company looking for full-service support with a same-day response, visit our CLO Program page for our strategic solutions.

Disclaimer: This blog is not intended to serve as or should be construed as legal advice and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call (800) 771-7882 or email [email protected]