Ordinary people have the notion that the practice of law is limited to the courts. In practice, a lot of the court cases do not end up in court because most disputes are settled out of court. This is especially true of small claims court and in collection actions.
Not all lawyers are high profile who appear in court ready to defend or to prosecute. Lawyers are paid to help with the interpretation of the law. In case of a breach of contract, they also advise if there was any law broken and if it can be defended in court. The end goal is always to spend as little time in litigation, and to bring the dispute to rest in a short time. To do this, they resort to negotiations. Both parties in a conflict would be willing to settle for less if given the alternative of going to court.
Out of court discussions are where the legal assistants and paralegals are most useful. Although a person can work in court after taking paralegal certificate programs, this is also one way to get court experience, which can help them apply for a better job. In some instances, paralegals are also students working on their law degrees. Negotiations require a good understanding of law as well as human nature. Motivation and psychology come into play when negotiating disputes.
In most negotiations, trying to win by a significant margin is not usually possible. It can also be a formula for failure. In a consultation, it is essential to know what the other party is willing to put on the table. It is also vital to understand what the other party is ready to walk away with. A common breach of contract negotiation usually involves some form of debt. There is a contract which includes the responsibilities of both parties, and their obligations to one another. In most cases, the breach of contract is a non-payment of duties, where the litigant is trying to collect, and the defendant has not been paying.
It is the responsibility of the litigant to provide proof that the defendant has not been paying. It also helps if the defendant can provide evidence that the other party is in a position to pay. At the same time, the defendant also has to offer proof of payment, or if there has not been any payment, to give a good reason why he has not been paying. This is the starting position, and all negotiations start from there.
The litigant’s fallback is to go to court. It should not be a surprise that the best position that a defendant can give is to stall with the position that going to court is expensive. For the litigant, a quick payment in cash is better than sending the defendant to jail. When the defendant goes to jail, he will not be able to pay the debt. It is to his advantage to be able to collect as much and in cash as soon as possible. In the same manner, the defendant is in a position to negotiate for amicable terms. Specifically, these are reasonable terms, and the defendant can quickly pay. The negotiations then try to find a standard value acceptable to both parties.