When people talk about dispute resolution, it's often framed in adversarial terms: rights, remedies, tactics, positioning, etc. But in practice, resolving a commercial dispute is less about “winning” and more about creating the right conditions in which a settlement can sensibly take place.
That's easier said than done.
At its core, settlement is about timing, psychology, and trust, not just the legal merits. Parties need space to assess risk, absorb information, process emotion and reach a point where resolution feels not just tolerable, but optimal. And as any experienced disputes lawyer knows, that exercise is rarely linear or straightforward.
The legal position is only one part of the puzzle
Clients often expect that a robust letter before action will “bring the other side to the table.” Sometimes it does — but on other occasions, it can harden positions. That's because settlement isn't just about logic. It's about emotional readiness, internal politics, commercial context, and the availability of alternatives.
A client might have an excellent claim but be weeks away from cash flow pressures forcing a compromise. A defendant may know they’re exposed but need time to soften the ground internally before they can move. The best lawyers help clients navigate these human factors, not just the legal issues.
Timing is crucial
Pushing for a deal too early can be as ineffective as leaving it too late. The sweet spot often arises once both parties have a clear understanding of the risks, costs, and likely timescales, but before entrenchment becomes irreversible.
Good dispute resolution lawyers know when to press, when to pause, and when to create opportunities for settlement to breathe. It's about reading not just the file, but the people. Lawyers need to be more than legal advisors; they must be facilitators, negotiators, and occasionally, quiet diplomats.
The environment matters
Settlement thrives in the right environment, one that fosters dialogue, protects confidentiality, and lowers the temperature. That might mean a mediation, or simply a well-structured, without prejudice meeting away from the courtroom drama.
Creating that space takes careful choreography: managing client expectations, controlling the narrative, conditioning the other side, ensuring decision-makers are in the room, and establishing mutual respect, even where the issues are hard-fought.
A word on mediation
Formal mediation remains one of the most effective tools to unlock a settlement. According to the results of the latest CEDR mediation audit, the overall success rate of mediation remains very high, with an aggregate settlement rate of 92%*. But success depends on extensive groundwork: preparing the client thoroughly, understanding what the other side needs to hear, and making sure the atmosphere is conducive to a deal. It’s not about who’s “right” — it’s about what works, and what’s possible.
Conclusion
Commercial dispute resolution is not just about deploying legal tools — it’s about fostering the conditions for resolution. That takes skill, judgment, and patience. It’s far from easy, and it’s not always quick. But for clients, it’s often the difference between a damaging war and a workable outcome.
Albert Einstein once said, “In the middle of every difficulty lies opportunity”. Good disputes lawyers know when to seize that opportunity and make the most it for their clients.
As lawyers, we should see ourselves not just as advocates, but as legal architects, shaping the conditions in which sensible settlement can occur.
*Aggregate settlement rate takes into account those cases which settle on the day of the mediation and also those which settle shortly after the mediation.
This information is for guidance purposes only and does not constitute legal advice. We recommend you seek legal advice before acting on any information given.
