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Employment & Labour

To settle or not to settle: that is the question

Deciding when to settle and when to litigate hinges on a client's unique circumstances, says Toronto employment and human rights lawyer Christopher Achkar.

“To settle or not to settle depends on one’s financial situation, the fee structure with lawyers and the client as a person,” Achkar, founder of Achkar Law, tells AdvocateDaily.com

He tells clients: “If you have time constraints and you need money ASAP, then you probably should settle.” But he cautions them not to do so if they feel they are selling their case short.

He also reminds them, “If you think you have dirty laundry that will get aired during litigation, you should probably settle.” The same applies if a client “doesn’t have the stomach” for what could be a lengthy and expensive litigation process.

“Settlements are encouraged all the time because they keep legal fees at the absolute lowest,” says Achkar. “Some people prefer to have $10,000 now, rather than $50,000 in two years. In fact, lawyers have professional obligations to encourage settlement discussions. However, that should not come at the expense of someone's entitlements.”

However, if settlement funds aren’t needed immediately, or the opposing side is clearly unreasonable in negotiations, or if the client has a strong case they feel passionately about and confident in the outcome, “you should litigate,” says Achkar.

He says employers tend to want a quick resolution if they don’t want particulars of the case made public through the litigation process.

Most people dealing with job loss are passionate about their cases, says Achkar, although just because they feel wronged doesn’t necessarily mean they were. That’s where counsel can help.

“Lawyers are good at separating emotions from facts. People usually aren’t good at that when the issues are personal,” he says. “Lawyers tend to strike a balance between people’s emotions and realistic outcomes if this were to proceed to trial, which is never guaranteed.”

For example, there can be beneficial non-monetary resolutions with a settlement that a judge may not grant in a trial. “You can dictate what you want and be very creative about the settlement,” he says.

Non-monetary items can include a positive letter of reference or the waiving of a non-compete or non-solicitation clause, which allows the person to resume earning a living. Extended benefits and training for a new job can also be included in a settlement.

In matters involving human rights issues, a client may want the manager trained “to be more sensitive when it comes to human rights.”

Achkar says his firm litigates about 30 to 40 per cent of its files and he’s not one for bluffing.

“The more files we work on, the less we have to litigate,” he says. “Lawyers on the other end will advise their clients, ‘Look, that lawyer will sue us.’”

Achkar knows that clients often find the process difficult. “For lawyers, it’s fun. It’s what we do for a living,” he says.

“The more we prove our point and the more we know the rules, the more we feel we are better lawyers,” Achkar says. “So, it’s a continuous effort to become a better lawyer to get better results in a shorter period of time while properly using the rules that we are allowed to use through litigation in court.”

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