Due to systemic and historic factors, it is very hard for a litigator to be both a trial advocate and also a negotiator in a mediation setting. And, if serious reforms are not made soon, U.S. litigators are in danger of losing control of the settlement of their cases to a new breed of lawyer, the so-called “settlement counsel.” If you are thinking that something so preposterous could never happen, consider the fact that in the United Kingdom, these different roles are essentially divided between barristers and solicitors.

Following the U.K. model, at least one author has advocated designating a separate lawyer to act as settlement counsel in order to bridge this gap in the American system. Some law firms are already listing settlement counsel as a designated area of practice.

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