In recent times, commercial solicitors have played two distinct roles with respect to commercial disputes. The more traditional role as a litigator dictates that these solicitors proceed with taking the appropriate steps to filing and proceeding with a claim. On the other hand, there is an emerging role in society for settlement counsel, whose function is separate to that of the litigator. To better understand their respective domains, a more detailed explanation of the roles for each of these two types of commercial solicitors, is set forth below.

The role of commercial litigation solicitors is to:

• Litigate;

• Active pursuit of litigation adjudication;

• Legal analysis of the case (opinions and risk factors);

• Not participate directly in the settlement process.

Consequently, the role of settlement solicitors is to:

• Focus exclusively on problem solving and negotiated resolution;

• Develop options, settlement goals and strategy with client;

• Orchestrate settlement events;

• Prepare client for and participate in settlement events;

• Active pursuit of settlement goal;

• Not to participate in the litigation process.

It is often advisable and cost efficient to hire both a commercial litigation solicitor and a settlement solicitor in a commercial dispute. At first glance, this may seem more costly than simply hiring a one commercial solicitor to litigate while considering settlement options, however, further analysis will show that cost savings of hiring two separate solicitors in a commercial dispute can be substantial.

When looking at the costs of hiring two commercial solicitors, it is important to note that the roles are not duplicative. While litigation is a rights based process which focuses on the application of the law to the facts of the case; settlement is an interest-based process which focuses on the future – looking at the parties’ interests and options. Hiring a solicitor solely to attempt out of court settlement greatly increases the chances of achieving a fair settlement much earlier in the process than in litigation; further it minimizes or even avoids the risk of escalating the conflict; and it can reduce the need for formal discovery. All of this provides for a substantial savings opportunity Also all cases do go through settlement efforts even if only one solicitor is hired, so a significant portion of the cost of hiring two commercial solicitors is likely to be incurred anyways. In deciding whether to hire a settlement solicitor, one should also note the creative fee structures offered by settlement counsel.

In summary when dealing with commercial disputes, hiring a solicitor to specifically focus on alternate dispute resolution and settlement outside of court can speed up the time it takes to resolve disputes. This allows not only for significant savings in legal costs, but more importantly encourages the continuation of flourishing business relationships and can bolster long term business prosperity.