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Litigation in Germany
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Philipp Meier
Specialist lawyer for banking and capital market law
+49 (0)711 89 47 15 87
Legal Information
How can litigation be avoided?
At some point in every business relationship, a point can be reached at which a legal dispute can apparently no longer be avoided. Too many things have gone wrong, opinions differ widely about what caused it and the matter has already been escalated internally to management. In the case of hardened fronts, it is therefore only a matter of time before legal prosecution begins.
Call in a lawyer at an early stage
Unfortunately, in this heated mood, often much blood is left on the carpet. Even if an agreement is reached at the end of a long and complex legal dispute, no further cooperation is usually considered due to the confrontation experienced in the process.However, this does not necessarily have to happen. Calling in an experienced lawyer at an early stage and de-escalating communication can, depending on the situation, avoid lengthy and costly arguments. At the beginning of such a process, as always, there must be an exhaustive examination of the fact pattern and legal situation and the discussion of the opportunities and risks with the client. A discussion strategy is then agreed, which should work towards an agreement. It should also be considered whether the communication should be carried out through the lawyer or through the mandate. It can make sense in individual cases if the lawyer remains in the background and the client himself conducts the communication with the opponent, which has been coordinated by a lawyer, as was previously the case in the business relationship. This usually avoids the knee-jerk involvement of a legal representative on the other side. This technique requires special skills from the attorney in formulating and controlling the communication in order not to let the ongoing legal advice become obvious.
If the opponent is already represented by a lawyer
But even if the opponent has already called in a lawyer, an attempt at an agreement can often be worthwhile. Because the legal representation of the other side can also offer a great opportunity to settle the matter out of court. The likelihood of this increases to the extent that the opponent can be presented with a clean and fully processed factual and legal situation in order to formulate suggestions based on this with a sense of proportion. Because even an opposing lawyer will conscientiously weigh the facts of the case and advise his client on the safest route on this basis, instead of exposing him to risks that can be avoided by a peaceful solution.
Conducting agreement talks
If there are discussions, it is always advisable to first have an honest discussion. This is important in order to understand the motives and the mood of the other person. The latter in particular should not be underestimated, since many disputes, even in business dealings, are often not based on objective considerations but rather internal constraints or negative emotions, which are often based on incorrect or incomplete assumptions.Then we have to look to the future: What has to happen in order for us to understand each other again? In this phase, too, each party must have the opportunity to speak freely without being opposed too early. The main thing is to create a factual atmosphere for discussion. Online meetings can have a supportive effect here, as each party can remain in their familiar surroundings.In the third step, an offer is made which, if possible, makes the agreement appear more attractive to both sides than the initiation of legal dispute proceedings. However, it is always important not to abandon the important points of your own position, but rather to make concessions elsewhere, if possible. However, this is only possible if the opponent’s motive could be found out beforehand.In any case, the result should then be recorded in writing. This can be done by way of a settlement or in the form of a declaration of intent.
"Permanent issues" - A classic in out-of-court dispute resolution
There is a particularly high potential for damage in so-called „permanent matters“. These are emerging controversial matters that develop over a long period of time from an initially very hopeful collaboration on a particular project. If failure later becomes apparent, the mutual frustration is often particularly great and, in addition to anger about the joint project that has not been implemented, there is also personal disappointment with the previous partner. If such situations are disputed, long-term disputes often develop – sometimes also of a criminal nature – which cost a lot of time, money and nerves. In such cases, it is advisable to consult a lawyer as early as possible in order to objectify the disjointed situation again.
If an agreement doesn't work out despite everything ...
Even a failed attempt at an agreement can later have positive effects, because sensible attempts to reach an agreement regularly give a deciding court a positive impression of the party willing to reach an agreement. It is not uncommon for these to be taken up by the court at the very end of a legal dispute or earlier by the court and advised to the parties. Anyone who has submitted a comprehensible attempt at an agreement on the basis of the relevant factual and legal situation in advance has a good chance of reaching it in judicial proceedings.
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