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To Negotiate or not to negotiate - Rachel Pasher EIjkenaar, Adv.

Legal questions, relevant in any legal system:

I am a member of the Israeli BAR I practice law according to our legal system Yet- there are basic Q&As that a legal any legal advisor in any place and in most fields of law, needs to cope with. One of these is the very basic question: what advise should a lawyer give her client- when the client finds herself himself- in a legal disagreement or in a legal fight with an opposing party. Should the client be encouraged to sue? To negotiate? To settle?

To sue or not to sue- that is the question:

A great question any party and any lawyer is faced with again and again. A client that decides to sue, can lead the plaintiff to a great result- winning, getting from the court all that he asked for and even the legal expenses. Yet- it can also lead to a disappointment- because the court is not convinced in the plaintiff's case, the plaintiff not only goes home empty handed but may need to pay the opposing party's legal expenses.

Which is the better choice? Unfortunately there is no simple answer Each client and each case, need to be analyzed by both client and lawyer. All possible moves should be discussed- just as a professional chess player would- and only after that- should the client make the choice - always based on calculated risks- o matter what the choice is.

A recent case of a client that decided to give a chance to negotiation:

Recently, I worked with a client that owns an online platform with content for sale. The client discovered that some paid users were misusing their license to use the content accordingly- by selling it to third parties. I offered my client one of two options. The first- to file a claim with an urgent request for a temporary injunction or the second- the negotiation route. The first could have brought hi, either the immediate injunctions plus a court decision for compensation or-as there is always a risk that the plaintiff does not win- an investment in the legal proceedings that will not necessary reward him with all that he will claim from the defendant- but could be a deterrence - so that other potential infringers will think twice before they act. compensation negotiated on behalf of the client. The second- to negotiate with the infringer and to try to reach an agreement- a compromise. This would take place while the client would make it clear, that if he would not meet the client's demands- the client would not hesitate to initiate the legal proceedings(as detailed above). After approximately 2 weeks from the first letter I send the infringer, including my client's demands- the parties reached a signed agreement.

The infringer agreed to: stop his infringing actions, to supply with a list of parties that purchased the infringing content, to pay my client compensation and to pay a large and agreed amount of damages- if he would bridge the agreement. Does this always happen when negotiating? No! Yet- this time thanks to my client that had on the one had patience to negotiate and on the other hand was very determined and ready to fight it in court if the negotiation would have reached a halt.

Negotiating after initiating legal procedures:

My experience has shown me that there is almost always a chance that the parties will negotiate even after they reach the court room( I do not refer to criminal law- and even there- at times the parties - state v defendant negotiate towards). At times there is no choice- as the parties resist any opening for compromise. Both carry the legal expenses of going to court. Usually - at the first court hearing- the judge offers the parties to try and compromise. The weight of that usually makes them think- and at times- negotiation will start. In other instances- the parties or one of them insist on the full procedures. Even at this advanced stage- the court may offer them to consider compromise At times- the legal expenses drive them to negotiate.

Custom made:

At times the analysis will lead to negotiation and an agreement , and at times- the legal proceedings will be completed - with a court decision.

* The above article does not constitute legal advice. Adv. Pasher EIjkenaar, is a seasoned lawyer - with experience representing clients in Israel and clients that are out of Israel with legal interests there.

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