Complex litigation such as business disputes has become commonplace. There are clever and dumb ways through which you can resolve disputes. Litigating the dispute for several years is a dumb way to resolve it. Most of the cases related to litigation are resolved before there is even a verdict. It is due to this reason that people have realized that waiting around would only lead to a waste of their resources. The planning and prosecution of the case must be considered as it would offer a solution to be found.
For example, there was a case in which many businesses were involved. It took more than five years for the case to be finalized. The cost of the lawyer time was three times as much as it would be if a different procedure was followed instead of litigation. Resources were wasted due to the complicated and long process. A huge amount of funds had to be paid for all the efforts. The attorney hired influences the cost incurred. The expertise of the lawyer and their experience can make a great difference. However, one has to evaluate the available practical tools. These can help improve the odds of a complex case being resolved.
Components Which Lead to Settlement
Many components allow a settlement to be reached. Moreover, there are similar components that have to be first identified. Two similar components must be taken into account. The first component is the attorney and the parties having sufficient knowledge about the pros and cons of the case, including those of the opponent.
Secondly, the party has to be aware of what is at hand and how the party is willing to respond with this knowledge. There is a deadline i.e. the trial which forces the party to reach a decision. A cost and benefits analysis will come in handy in such a situation. It will help with settling the disputes between the parties. Other critical phases need to be considered.
The point of critical mass needs to be evaluated. It is the point where no more resources are wasted. When it comes to complex litigation, different types of categories come into play. These cover all types of issues such as environmental concerns and product failures. Special handling can seriously impact the ease of handling complex cases. Since a resolution is ensured and encouraged to be reached efficiently and quickly, it is very advantageous. A lawyer from Paul Steiner could help solve just about every type of business dispute.
One thing is similar for all cases and that is the importance of an attorney. It is the lawyer that helps resolve business disputes. Special handling provides both the parties with the opportunity to decide whether the case has reached the point of critical mass and if it would be better to settle the case without going to court. There is also a need for meticulously going through the case management plan. Representative cases can be used here for reference and reaching a mutually beneficial decision. Early scheduling can also be done.
The Role of the Court
Litigation tends to be unpredictable. The majority of the components of the case are simply beyond the attorney’s control. A judge will need to provide assistance if only one party wants a smart resolution, while the other party is not interested in working together for a mutually beneficial decision.
By Hiring the Right Mediator
The right mediator can help resolve complicated business disputed. Businesses have realized the importance of mediation and have started to hire a mediator to solve all types of business disputes. Alternative dispute resolution is advantageous to both parties and they should fully utilize it for settling issues. However, the mediator has to be vetted carefully. The interviews will have to be conducted with a view to hire a mediator who is most suitable for the case at hand. The mediator has to be neutral if the mediation is to be successful. If there is a doubt in the selection process, then an attorney should be hired who is familiar with the mediation process so that the attorney can help determine the right mediator for the case. The interviews can either be conducted separately or together. Moreover, the parties may meet the mediator individually as it is allowed. The parties can speak ex parte unlike when it comes to a judge, or arbitrator, as well as a jury. Following are some of the factors that need to be taken into account when you and the other part consider hiring a mediator.
- Time availability.
- Right temperament
- Dedication towards achieving a settlement.
- Other qualities depending on the case.
Another important thing that needs to be considered is the fact that the mediator has to be proficient in expressing their point of view. They should be able to properly express the crucial details of the case. The parties have to be encouraged to reach a settlement. However, there is always a possibility for the mediator to be passive and to simply pass on communication. In such a case, it would be wiser to not hire a mediator. A professional mediator has to be hired who has experience handling all types of business disputes. There is a need for the mediator to have knowledge over the matter. It is vital to keep in mind that there are only few judges that have tried various cases. Chances are that the judge who tries your case might not have the expertise or experience to properly try your case.
Focus on the Facts
By going through the merits of the legal and remedial issues, as well as factual issues, complicated business disputes of the case can be determined to figure out if the case should proceed to the trial or not. Careful evaluation needs to be done on the mediation process. All the vital issues need to be fully understood by the attorneys, the parties and the mediator before the settlement negotiations even begin. Moreover, potential outcomes also need to be considered for making the right decision. Litigation should also be taken into account.
To resolve the business dispute, preparation is crucial. As the saying goes, failing to plan is planning to fail. It is with this mind that vigorous preparation needs to be done and time should be provided in order to vital information to be collected.
This is most true when the case is mediated before a complaint is filed. A proper mediation framework needs to be established which ensures the exchange of communication between the parties is achieved. Key information needs to be discussed during the meetings.
Exchange of Mediation Submissions
Both of the parties will have to prepare the Joint Appendix as it would consist of what needs to be considered as crucial documents by the parties with regards to the case. The Joint Appendix has to be shared with the mediator. The key issues will be mentioned in the document in order to come to a similar page with regards to the outcomes of the litigation. Even though parties will disagree on the outcomes, the crucial issues will have to be first understood.
Confidential Mediation Submissions
Once the submissions have been exchanged, the attorney will have to agree on confidential, separate, private conferences. These normally take place during the private conference where the attorney would work with the mediator faithfully to determine the beliefs of the parties regarding risks, weaknesses, hurdles and other issues concerning the parties. These confidential sessions between the parties and the mediator offer the attorney with the chance to share their deepest concerns and the business goals so as to have the dispute resolved. The reason for the success of mediation is the fact that both parties feel stress-free when sharing information as the mediator will ensure that the information is kept in confidence.
Furthermore, it will allow the mediator to candidly discuss his or her point of view with the parties and their attorneys during private conferences without having to put each part on the spot pitting against one another. All potential settlement options will be discussed in the meetings and there is no pressure for the parties to reach a settlement.
As the parties are free to either accept or reject an offer, they are better able to seek a solution to their business disputes.
Since there is no jury or judge present, the parties do not feel like they are fighting one another. This allows them to work together to find a creative solution that suits their needs best. The creative solutions will help save time and money. At the end of the day, there is no need for the parties to spend their resources on fighting disputes that last for several years.
The Final Mediation Sessions
Until it is obvious that all relevant issues have been adequately considered, the parties do not need to attempt to mediate the case. The mediation sessions ensure that new legal or factual issues are not raised. Therefore, it is useful if the mediator reserves an hour or more for a final mediation session for only the attorneys to weed out any issues that might not have been resolved. The mediator would discuss his or her final thoughts on how the mediation sessions would be conducted.
By Brining the Right People
Next, the right people would be brought to participate in the mediation sessions. They should be brought to the table and given full authority. It allows for the case to be settled. When it comes to the private side, it is not that difficult as individuals who hold higher positions in the corporate hierarchy tend to have to be responsible and must attend the mediation sessions. These individuals have the flexibility to adjust the settlement goals of the company they work for as the discussions move further. In tough cases, it is rare that any party gets the exact results that are desired from the mediation process. It is important for the right people to hear directly from the mediator in order to ensure that they are not biased or prejudiced.
By Keeping Your Cool
During any mediation, it is perfectly acceptable and rather vital for some sort of venting to occur. However at the bottom, the clients and their lawyers are mediating because they have a commitment to try and resolve the dispute in a voluntary way instead of having a solution imposed upon them by the jury or court, where the risks of undesired outcomes are always high and the outcomes are normally unpredictable. Moreover, there are extreme costs that are associated with the process which also need to be considered.
Those involved in the mediation process have to remember that they are playing a different role as compared to if they were litigating. It is important for everyone to put aside their emotions at the end of the day.
Although the goal in mediation would be to win, the best possible results should be obtained in accomplishing the objectives of the party. In mediation, winning is best accomplished by accepting the realities of what litigation would lead to and that is why it is crucial to bona fide work with the mediator.
In order to achieve quick results, the best practice would be for each side to begin the negotiations with understandable settlement proposals. Neither the opposing party nor the mediator will put thought to demands that are inconsiderate. If high demands are placed early on in the negotiation process, it would only lead to the mediation process taking much longer than anticipated. You must be disciplined when making demands. By doing so, a party would motivate the other party to follow suit and it would send a strong indication that it is possible for a settlement to be accomplished amicably. Keep in mind that a party does not need to make its next move until it has first seen the other side make a move.