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Last-minute negotiations

If you are trying to settle a case the day before the hearing, bear in mind that you cannot safely assume that the case is settled before either (i) both sides have signed a compromise agreement, or (ii) both sides have told ACAS that they are happy with the same COT3 wording. If you haven’t got to this point before everyone goes home for the evening, you have to assume that the case may yet go ahead. In that event you will need to go to the tribunal: probably you will be able to to put the finishing touches to the agreement then, but if negotiations come unstuck at that late stage you will need to be ready to fight the case.

This means that it is important to make sure that everyone knows how much time you have to achieve a settlement. If your client is going to be out of contact for any reason after a certain time, you need to know this. But don’t confine your inquiries to your own side: the settlement process will be just as surely derailed if when you think you are nearly there, the solicitor on the other side suddenly can’t get hold of her client. There is no reason why you shouldn’t say something like ‘I think we are nearly there, but I’m conscious of the time – can you make sure your client is going to be available to give you instructions until as late as necessary this evening?’ If it turns out that the decision-maker is planning to catch an afternoon flight in order to attend the hearing, then he will be out of contact once he gets on the plane. The sooner you know that that is your effective deadline for settlement, the better. If you are using ACAS, find out as well how late your ACAS officer will be available.

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