Winning Without Fighting: A Modern Approach to Resolving Legal Disputes

Dispute resolution clients need (i) a timely resolution of the dispute, (ii) pursuant to a process they feel is fair and just, and (iii) at a price reasonably related to the value of the dispute. How well do we meet these needs and desires of our clients? Too often, the answer is not well enough.

How is the Missouri system of dispute resolution falling short? Too many disputes are taking too long to resolve. Courts often move slowly. Cases keep moving only when pending motions are ruled in a timely manner. For a variety of reasons, motions often sit unresolved for lengthy periods. Unfortunately, lawyers have limited, if any, control over such issues.

Time is money, as they say, and that is true in litigation. The longer the case remains unresolved, the more it costs the parties. As time passes and costs rise, clients wonder if they would have been better off to simply walk away or settle for whatever they could have had. How much justice can you afford should not be a question that frequently comes to mind for a party seeking justice. Too often, the experience leaves clients believing this is the first question they will ask themselves the next time a dispute arises.

To remain vibrant and relevant, our profession must become more effective and efficient in meeting the needs of our dispute resolution clients. How?

Adopt a dispute resolution mindset

Start at the beginning of the case. Communicate with opposing counsel. Try to understand your opponent’s position. What are their wants/needs? Communicate your client’s position, where they might have flexibility, and where they probably will not. Communicate an open-door policy on settlement discussions. Let it be known you are always open to suggestions, ideas, and proposals to resolve a dispute.

Pay particular attention to wants vs needs. This often becomes the ball game. Parties rarely settle for what they want; parties settle for what they cannot say “no” to. Your job as a trial lawyer is to find out what that number is and to let your client decide whether they want that deal, or whether they want to seek a better result at trial. Then, your job is to win at trial.

Litigation is a form of negotiation. As litigation progresses, the parties’ evaluation of their positions may change. Discovery reveals new strengths and weaknesses in a case. Rulings on motions impact evaluations. Be open to opportunities for resolution.        

A great trial lawyer will also be a good negotiator. If you can substantially achieve your client’s objectives without the risk and expense of trial, you have demonstrated what Sun Tzu calls the “acme of skill”. You have subdued the enemy without fighting (going to trial).

Adopt a risk management mindset

When defending high-exposure cases, the process of litigation, trying lawsuits, and negotiating settlements is a risk management function. Clients want and need advice on strategies, objectives and potential outcomes. Often, in-house counsel has little experience with high-exposure, high-value cases. They must make decisions about those cases, and they need a framework and rationale for those decisions. You must be comfortable providing one.

Every case presents a potential range of exposure. And there is a probability associated with the various outcomes. Often – not always – those outcomes and probabilities are represented by a bell curve. There are outlier outcomes on the low end and the high end, with the more likely outcomes somewhere in between.

Using a risk management approach to the analysis, the outcomes judged to be most likely multiplied by the probability of the outcome yields a reasonable value of the case. This often provides a reasonable settlement amount that can provide one data point in evaluating settlement offers and establishing a reasonable goal in a negotiation.

The process is an art more than a science, but it provides a structure for thinking about the value of a case and evaluating the reasonableness of a settlement. Any number of facts will influence the final determination, often pointing to a settlement amount higher or lower than that suggested by a purely mathematical analysis, but it provides a framework for counsel and client to address the problem.

Mediation: become a student of mediation and a peacemaker

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser – in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.” – Abraham Lincoln

Early in the author’s career, his focus as a trial lawyer was trying cases. He viewed the job not to resolve disputes but to win trials. Clients were like NFL owners. NFL owners selected quarterbacks solely to win games. He believed clients hired trial lawyers solely to win trials. He learned reality is a bit more nuanced in the world of legal services.

Clients retain us to resolve their disputes and manage their risk, effectively and efficiently. If the dispute cannot be resolved short of trial, then yes, they want a trial lawyer who can win cases.

However, as the author observed early on, and has become increasingly the case, most cases are not tried. They are settled. And even most cases that are tried are not finally resolved until they are settled post-trial or while on appeal.

Thus, the author learned, if he wanted to be known as a great trial lawyer, he needed to become great at obtaining favourable settlements. As the ancient Chinese general, Sun Tzu, taught, “Winning one hundred battles is not the acme of skill; to subdue the enemy without fighting is the acme of skill.”

Do not wait for mediation

Cases do not have to be mediated to be settled. Early in every case, the author tries to establish a relationship with opposing counsel that will facilitate an open and continuing exchange regarding clients’ respective positions and objectives. Almost without exception, the author lets counsel know he is always open to any ideas or proposals as to how a dispute can be resolved. But the writer sees in many lawyers a reluctance to engage in direct negotiations and to default to the mediation process.

For some time, the author was a reluctant participant in mediation. He thought it largely a waste of time, introducing a third party to do what counsel for the parties should be able to do themselves. Eventually, he came to realise that the reason most cases settle through mediation is that counsel are often unable, for a host of reasons, to effectively negotiate a settlement through direct negotiations. He increasingly saw settlement as a process, partly rational and partly emotional; a path that had to be travelled, by all participants. And he became persuaded that a knowledgeable and effective mediator could be an important, even an indispensable, part of that process.

So, he decided to become a student. He enrolled in a week-long programme at the Straus Institute for Dispute Resolution at the Pepperdine School of Law. The programme – Mediating the Litigated Case – was new. It was training for practising lawyers to teach them how to become more effective representing their clients in mediation. To become more effective in achieving your client’s objective in mediation, you must become a student of mediation. Learn the process. Learn the concepts and techniques. Understand how it works, or at least how it can work.

Mediation is not litigation

Litigation necessarily involves conflict. It is adversarial. Mediation, done well, requires more of a problem-solving approach.

One requirement that remains common to both endeavours, however, is you must be prepared. You must know the facts, and the legal issues in your case. You must have a thorough understanding of the legal claims and defences and be prepared to persuasively discuss their strengths and weaknesses.

Objectivity is important. Critically evaluate your case and know the strengths of your opponent’s case. Decades ago, a trial lawyer who had tried dozens of cases explained to the author a key insight. He observed that the best case you will ever encounter still has, at best, an 85% chance of winning. Conversely, the weakest case you will ever see, if it survives summary judgment and is presented to a jury, will have at least a 15% chance of winning.

This illustrates the inherent uncertainty of outcomes in litigation. And, if you approach the process with the risk management mindset discussed above, it will be a rare case that does not justify assessing at least a 15–20% chance of success. Such lack of certainty, especially in high-value cases involving tens or hundreds of millions of dollars, informs the wisdom of settlement to manage that risk.

Make your opponent decide

The number one mistake to avoid is never forcing your opponent to make a decision. How do you force a decision? Make an offer. Or a demand. Offers and demands must be conveyed to the opposing client, and they have to make a decision. Do you accept the offer? Do you pay the demand? The opposing party has to decide.

The author will use a case to illustrate the point. He was hired in an aviation case 60 days before trial. It was a tragic accident involving a couple with four adult children. The airplane crash did not kill the couple on impact; they burned to death. Difficult case to defend, and plaintiffs’ counsel knew it. They had presented a USD120 million “non-negotiable” settlement demand over a year prior, and the international insurance consortium, who very much wanted to settle the case, refused to make an offer, because “with a demand that high, even if we offer just USD1 million, it suggests we might pay USD50–60 million.”

In the author’s first call with a half-dozen international aviation underwriters, he listened to their concerns, and then they asked for his advice. He told them they were focused on the wrong issue. They were focused on the demand – “what the plaintiffs wanted”. That is irrelevant, he told them. What you need to find out is “what they can’t say ‘no’ to”. Cases rarely settle for what the plaintiff “wants”. They settle when you offer an amount the plaintiff “cannot say ‘no’ to”.

The lawyers then executed the strategy the author recommended. He told counsel for plaintiff, “I have authority to settle this case for a lot of money. I don’t know if it is enough money. But my clients need to find out if it is enough, and so do you and your clients. Because we are short on time, I am going to make an opening offer that is most of what we have to settle. If, and only if, your clients then make a huge reduction in their demand, signaling they are interested in a settlement in the neighborhood we are suggesting, I will then offer nearly all the money we have. I will hold back only a small amount to close the deal if we are close.” This is a framework the writer has used with success in several high-value, high-exposure cases.

The team had “a little over” USD20 million in settlement authority, which the author interpreted to be USD25 million. He pushed to offer USD18 million, and a member of the insurance consortium argued it would lead to pressure to settle for USD50 million or more. But the vote was to let the author execute his strategy. The team offered USD18 million, with the explanation telegraphing their following moves if they received appropriate counters. The “non-negotiable” demand that had been in place for over a year was reduced to USD45 million. The author then offered USD22 million. That produced a counter of USD28 million. The case was settled at USD25 million.

The plaintiffs “wanted” USD120 million, but the writer believed there was a good chance they could not say “no” to USD20 million. Once the team signaled they could get at least USD20 million on a risk-free basis with no trial, the plaintiffs took control of the negotiations and instructed their lawyers to get as much over USD20 million as they could. They achieved USD25 million.

Why had the case remained stuck at USD120 million “non-negotiable?” Because the insurance consortium refused to force the plaintiffs to make a decision. The author used a line with these clients that he had used in the past. Do not underestimate the power of USD20 million. The CIA can overturn governments with USD20 million (this was a few years ago; the price may have gone up). They may say “no” to USD20 million, but they may start thinking about what they can do with that money, and they may be unable to walk away from it. In this case, they did not walk away.

Technology: trends for 2026

Like everything else in the legal world, artificial intelligence and other technology tools are being used with increasing frequency in mediation and dispute resolution.

Online dispute resolution, supported by digital dispute resolution platforms, may become the norm rather than the exception. Virtual sessions lower cost and make justice more accessible.

Specialisation is increasing. Common specialties include construction and infrastructure disputes, technology disputes, energy disputes, intellectual property disputes, and international investment arbitration (see the next section).

Artificial intelligence tools are proliferating. AI is being used for case analysis and document review for (and by) mediators and arbitrators. These often tie into automated organisation of evidence and timelines. AI tools now suggest negotiation and mediation strategies. One tool, which the author suggests should be used sparingly and with great caution, is AI-assisted drafting of arbitral decisions. AI competency is now a core professional skill but must be used only with full awareness of ethical rules and restrictions.

Globalisation: dispute resolution in a global economy

Should Midwest lawyers concern themselves with international dispute resolution mechanisms? Yes, they should.

We live in a global economy. In recent years, we see some trend toward de-globalisation, but US companies still do a lot of business overseas. And when business is done with foreign counterparties, there will be disputes.

The foreign entity often is unwilling to agree to resolve disputes in US courts, so the parties agree to arbitration. Common types of disputes for international arbitration are breach of contract, M&A disputes, joint-venture disagreements, issues concerning intellectual property, and construction contracts.

The most common institutional rules for international arbitration, and the approximate relative distribution among the major commercial institutions based on 2023–2024 data, are:

• International Chamber of Commerce: 31%
• International Centre of Dispute Resolution (international division of AAA): 28%
• Singapore International Arbitration Centre: 21%
• London Court of International Arbitration: 10%
• Hong Kong International Arbitration Center: 10%

The hallmark of arbitration is private adjudication before neutral arbitrators (or one neutral and two party-appointed arbitrators). International arbitration and US domestic arbitration share this feature. But there are significant differences.

1. Governing legal framework

International arbitration

• Governed primarily by:
1. New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards;
2. United Nations Commission on International Trade Law Model Law; and
3. national arbitration statutes in the seat of arbitration.

US domestic arbitration

• Primarily governed by:
1. Federal Arbitration Act (FAA Chapter 1); and
2. state arbitration statutes.
• Case law heavily shapes procedure and enforceability.

Key distinction: international arbitration involves treaty-based recognition across borders.

2. Enforceability of awards

International

• Awards enforceable in 170+ countries under the New York Convention.
• Limited defences to enforcement.
• Designed for cross-border asset recovery.

Domestic

• Enforcement limited to US courts.
• Still strong enforcement under FAA, but not treaty-based.

Practical implication: international arbitration is often chosen because judgments may be harder to enforce abroad than arbitral awards.

3. Procedures and discovery

International

• Typically more limited discovery.
• Often blends civil law and common law traditions.
• Witness statements frequently submitted in writing.
• Document production often guided by International Bar Association guidelines.
• Depositions are less common.

US domestic

• Broader discovery typical.
• Depositions common.
• More motion practice.
• Procedure often resembles federal litigation.

Strategic difference: international arbitration generally aims to control cost and scope of discovery.

The NFL of international arbitration

Investor–state arbitration is a special niche in the field of international commercial arbitration. More than half of these cases are “ICSID” arbitrations, the acronym for the governing forum, the International Center for Settlement of Investment Disputes. These are disputes between a private investor and a sovereign state, usually governed by Bilateral Investment Treaties (BITs), or Multilateral Investment Treaties, such as NAFTA/USMCA. The cases can also be brought under the procedural frameworks of the Permanent Court of Arbitration (PCA) and the United Nations Commission on International Trade Law (UNCITRAL rules).

This practice area is created by sovereign states which, by treaty, extend to private investors who are citizens of other sovereign states’ certain substantive protections. These protections include:

• Protection against expropriation (direct and indirect):
1. direct expropriation is a formal transfer of title or seizure of property;
2. indirect expropriation, or regulatory taking, includes government measures that substantially deprive the investor of economic value; and
3. states may not expropriate an investment unless:
1. it is for a public purpose;
2. it is done in a non-discriminatory manner;
3. it must be done with due process; and
4. it must include prompt, adequate, and effective compensation.
• Fair and equitable treatment (FET):
1. FET is the most frequently invoked standard in ICSID cases. They protect:
1. legitimate expectations;
2. transparency;
3. consistency of regulatory framework;
4. freedom from arbitrary conduct;
5. due process protections; and
6. good faith treatment.
• National treatment:
1. foreign investors must be treated no less favourably than similarly situated domestic investors:
1. typical violations include discriminatory regulation and unequal licensing treatment.
• Most favoured nation (MFN) treatment:
1. These clauses guarantee treatment no worse than investors from any third country.
2. MFN clauses are often used to:
1. import more favourable procedural protections from other treaties;
2. broaden dispute resolution rights; and
3. expand substantive protections.

In a world of globalised commerce, dispute resolution practitioners (in private practice and in-house) should be aware of the investor–state framework for resolution of disputes. Most countries are signatories to the ICSID Convention and extend substantive and procedural protections and access to these remedies. Refusing to do so takes a country off the list of potential investment locales of many international investors. This is the price of access to international capital investments.