Good lawyers work hard to settle cases before a trial

Much of the work of an employment lawyer involves the lawyer operating behind the scenes. In fact, a very, very low percentage of cases make it to court, as counsel for each side is able to reach agreement in most cases before that happens.

I work hard to settle most cases while simultaneously securing a settlement that is fair, without the burden and cost of going to trial. But sometimes these matters end up there anyway, even when they settle. A recent Superior Court of Justice decision that I was involved in shows that courts appreciate the efforts we make to settle matters before burdening the court.

In Peres v. Moneta Porcupine Mines Inc., I represented a former corporate president and CFO who was terminated from his position with a well-known gold exploration company in 2020. Early in 2021, an experienced mediator conducted a full-day virtual mediation, and at the end of a hard day’s work presented an offer from the company to my client that he was prepared to accept once the firm’s lawyers wrote it up.

That night, according to the court’s decision, the company’s counsel “provided her substantive agreement to … the concluded settlement between the parties” in an email. In response to an email where I essentially wrote “we have a deal,” the defendant’s counsel wrote back in an email: “Sounds good. Will get you a draft tomorrow”.

Most legal work happens behind the scenes

This type of back-and-forth, sometimes casual (although in this case my emails summarizing settlement, quoted at length by the judge, were thorough), is the bread-and-butter of behind-the-scenes legal practice. Counsel often seek to do their best to settle a case and this judgment provides a rare glimpse into that side of things.

As the judge who wrote the decision noted – although at some point the company’s lawyer emailed that she was “FINE” with a complex options element to the settlement but added that this was “SUBJECT TO DIRECTION” of the company’s board – in the context of a hard day’s mediation and the “done deal” language of the emails, an agreement had been reached.

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The court’s decision is a reminder that it is the court’s policy to encourage settlement and, to do so, they will give effect to what might seem like an outside observer to be fairly casual emails and communications meant to convey a desire to settle. Much legal work, indeed, is not the formality of a courtroom drama, written legal argument to a higher authority or formal paperwork, but it often involves the skillful resolution of matters with the many tools lawyers bring to the table.

This case serves as reminder that a lot of law happens behind the scenes and that good counsel work hard to settle to keep cases from going to trial. And as this judgment confirms, courts will do what it takes to give effect to these settlements.

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