Negotiation and Pre-Litigation
Before initiating litigation, it is necessary to assess whether there is scope for agreement and what conditions make it worthwhile. Negotiation requires the same rigor as litigation: knowledge of the case file, clarity of the objective, and awareness of the alternatives.
Prepare the negotiation before the first proposal
Effective negotiation begins with knowledge of the facts, evidence, and alternatives. We reconstruct the relationship and distinguish what is documented from what needs to be verified. We identify the business objective: obtaining a service, recovering a sum, terminating a relationship, or preserving a partnership.
The negotiating position also depends on time, operational continuity, costs, and the possibility of protection. We define priorities, margins of concession, and points requiring an explicit decision, without confusing an exploratory proposal with a definitive commitment.
Formal notices, claims and responses
Communications must accurately describe the problem and preserve the assisted party's position. We review the contract, previous messages, and deadlines before making requests, acknowledging facts, or proposing consequences. Even a brief response can impact subsequent disputes.
A formal notice can serve to request compliance, document the dispute, or prepare for a further step. The choice of instrument and content depends on the relationship; generic formulas alone do not ensure the desired results.
Direct negotiation and assisted procedures
We evaluate negotiations between lawyers, mediation, and assisted negotiation, determining when a procedure is required or useful. These are distinct paths, with rules, participants, and consequences that must be understood before starting.
We prepare documents, issues to discuss, and possible solutions, keeping the discussion aligned with real interests. An agreement may include payments, deliveries, adjustments, continuation of the relationship, or an orderly termination, as long as the obligations are clear and feasible.
An agreement that resolves the dispute
Amounts and deadlines are only part of the equation. It's important to regulate guarantees, waivers, effects on related relationships, expenses, return of goods and documents, confidentiality, and the consequences of non-compliance. We verify signing authority and the parties required to participate.
Waivers can have different effects if immediate or linked to payment. We also evaluate how to enforce the agreement in the event of default and whether specific forms or venues are required. The text must reflect the actual agreement, leaving no ambiguity on the essential points.
An example: ending a disputed supply relationship
Supplier and customer want to terminate the relationship, but goods, outstanding receivables and complaints remain. An agreement limited to the balance may leave open returns and warranties. The solution requires an inventory of issues and a sequence of services, with documents certifying their execution.
The example is illustrative. A transaction is not always the best option: if the proposals are unsustainable or time jeopardizes protection, moving to another initiative should be considered.
The client’s documents and decisions
To begin, we need the contract, correspondence, proof of service or damage, requests received, and deadlines. We also ask what the company considers essential and who can authorize a proposal. The assignment defines the activities, compensation, and management of any legal developments.
Frequently asked questions
Does negotiation mean admitting one's wrong?
No, but the content and form of communications must be carefully considered.
Is it necessary to accept the mediator's proposal?
The consequences of the choices made must be explained in the context of the procedure.
Can negotiation take place during the proceedings?
It may be possible, coordinating the agreement and the procedural position.
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