Fixing a Problem without a Lawsuit

Atty. Rami Hourani

Dispute Resolution is the field of law that is probably the most misunderstood by the general public. The thinking of people is that the work of a lawyer is only for the purpose of filing cases. This is very much not the case. There are many instances where it is prudent to get a lawyer outside of filing a case.

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This seems like a strange legal maneuver to pull off but these kinds of deals happen everyday. Examples: A small fender bender where both parties decide to just shake hands instead of getting their insurance companies involved. A mishap on a basketball court where one person is injured due to an unintentional hard foul and everyone grabs beer afterwards. A husband reaches into his wife’s purse to buy something in the grocery store and she scolds him before they forget about it and get ice cream together. Compromise is not an action we talk, it is our default setting as human beings.

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The astute amongst you may ask the question though, if compromise is so common, why do we need lawyers? Well, there is a small subset of civil dispute where the issues may be too complex, emotions have raised tensions, each party has widely differing points of view. In these instances, it is often prudent to call a lawyer to negotiate on your behalf. This is because a lawyer communicates two things: First, you take seriously your rights in this dispute and will not be willing to unknowingly bargain them away; Second, if an amicable settlement is not reached you are willing to go to court.

In these instances, some of the standard advice lawyers will give first, is that they be the one’s to communicate on your behalf, second, that they cannot act without your say-so and will need to get in touch with you, and third, the way they will communicate will deviate wildly from the way you want to communicate and you have to be ok with that.

I’ll explain each of these pieces of advice in turn.

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First, the reason why a lawyer will insist that he communicate’s on your behalf is he/she wants to restrict the legal liability you might incur. When people communicate, they make certain admissions. If you say you’re going to a PTA conference, you admit you have a child in that school and that you’re an involved parent. If you say that you say you’re sorry, you admit you did something wrong. Especially colorful communication can also result in the crime of threats under Philippine law.

Second, the reason why they need you to get back to them as soon as possible is because a lawyer’s authority outside of the courtroom is limited in scope. Offers may require immediate responses and they cannot assume what you’re willing to give up in order to make the problem go away. The lawyer may be confronted with aspects of your case that you did not disclose and have a new assessment of your relative bargaining position.

Third, the reason why a lawyer’s communication may not be what you expected is because your lawyer is trying to get a settlement. He/she is not trying to argue your case because there is no impartial third party to settle objections or differences of opinion. This means that every comment, remark or statement which prompts a response only serves to keep the dispute alive. Your lawyer is primarily concerned with how much you’re willing to part with to make the problem go away as opposed to your actual legal liability. As your lawyer may be communicating with another lawyer, his communications will be brief as to not apprise the other side of your intentions or motives.

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All of this culminates in the execution of a compromise, quitclaim, or waiver which your lawyer may prepare upon consultation with the lawyer of the other party, if one has been retained. This agreement formally closes the book on your dispute. Thanks for making it to the end of my article! I sincerely hope that you never need my advice!

Atty. Hourani practices law in Cebu City, PhilippinesIf you would like to set an appointment with him, you may reach him here.

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