Early Dispute Resolution
It is axiomatic that the faster that a dispute can be resolved, the better for all. The dispute may concern simple differences regarding the value of a service or product which is the subject of a new or existing contract, or a more complex matter. Whatever the subject or nature of the dispute, quicker resolutions reduce the toxic effect of disagreement and can preserve valuable relationships.
A mediator, armed with the power to talk confidentially with all parties, can often significantly accelerate the resolution of a dispute. The earlier a mediator becomes involved, the greater the probability that a solution will be found and found quickly. Why? Because a good mediator begins by helping the parties understand the issues, and then works to build and execute a process through which a solution may be found. Additionally, early mediation can materially reduce the ratcheting of emotion and the entrenchment of positions (which, more often than not, leads to prolonged, expensive litigation).
In today’s world, it is common for parties and their lawyers to plunge headfirst into the litigation process, only pursuing mediation and other forms of alternative dispute resolution after the case has been proceeding for some time. Indeed, many lawyers believe mediation appropriate only late in the process after the parties have spent enormous amounts of time and money on discovery and motion practice, and are preparing for a trial. The rationale for this is that one needs to fully understand the parameters, strengths and weaknesses of one’s case before one can make well reasoned decisions regarding settlement. My response: true, but at what cost? Additionally, I ask: what is the goal? To win? Or, to better understand and resolve the dispute?
If the goal is to better understand and resolve the dispute, then there is a better way. Start mediation early! Paul Lurie, the Chair of the Guided Choice Mediation Interest Group writes:
[M]ediators can do much more than [preside over a meeting during which “the parties will either settle or not settle the case”]. They can investigate the issues confidentially and hold informal conversations with the parties, their representatives, and their experts; they can facilitate the exchange of just enough information so that the parties can make a business decision about whether to settle; and they can prepare a customized negotiation plan designed to overcome any factors that might lead to stalemate.
More specifically, an experienced early dispute resolution mediator may:
- facilitate the parties’ exchange of information which will enable the parties to more fully understand the dispute and the respective thinking of their counter-parts
- facilitate an understanding of the legal and factual issues that the parties are relying on when evaluating their respective positions and the risks/benefits of proceeding in litigation
- serve as a neutral evaluator, thereby helping the parties assess the strengths and weaknesses of their respective factual and legal arguments
- serve as a “neutral master” helping the parties resolve their discovery disputes
- facilitate the parties agreeing upon a customized process to settle their dispute For example, the issues may be narrowed so that only a much smaller, discrete set of facts and legal issues may have to be arbitrated or tried, and a more traditional mediation proceeding held after such factual or legal questions are resolved.
I am a strong advocate of early dispute resolution. I use my business and legal experience to help the parties address, understand, and narrow their dispute, and then craft a path which may be followed to achieve a fast and efficient resolution of the dispute.
Please know that I’m always available to discuss how I might help or options that you may have. Know, too, that I charge no fee for these discussions, and you have no obligation to retain me unless all parties agree that they wish to use my services.