Corporate counsel—under seemingly never-ending pressure to contain costs— have a wide array of dispute resolution tools available to them, including negotiation, mediation, arbitration and litigation. There are other devices, however, that merit consideration at any stage of a dispute.
In many places ADR has lost its novelty now that mediation and arbitration are firmly entrenched in the legal lexicon. In some jurisdictions, virtually every civil matter is mediated at some point on the way to the courthouse, or the arbitration venue. The value of mediation is well known. It is effective, resulting in settlements in most cases. It is confidential, delivers time and cost savings, helps to preserve relationships and gives users much-needed control and predictability in the face of the unpredictability of litigation outcomes. Arbitration also offers control, flexibility and confidentiality.
What about those cases where the stakes are so high and positions so entrenched that business leaders are unwilling or unable to negotiate a settlement? Is there a place for other alternative forms of dispute resolution? Astute counsel are increasingly turning to a variety of neutral analyses exercises to aid in the evaluation and ultimate resolution of their legal matters.
Neutral evaluation or analysis is, simply put, a non-binding process used when multiple parties or a single party to a dispute seeks the advice of an experienced third-party neutral concerning the strengths and weaknesses of their cases. The neutral may meet with all or one of the participating parties and receive documents as agreed, review factual and legal positions, evaluate what a likely outcome might be, and provide his or her view—usually in written form—of the likely result. In some cases where the neutral is acting on behalf of all parties, the neutral may also attempt to facilitate a settlement through mediation.
Another form of neutral analysis is mock trial. This is involves the presentation of one or more components of a trial including evidence (documents, witnesses, demonstrative), opening and closing statements and closing arguments in a simulated trial before a mock jury or judge. The judge and/or mock jury provides input regarding the impact of the evidence and arguments, and the strengths and weaknesses of the case. A similar process can be used for mock arbitrations, and neutrals may also be called upon to provide neutral assessments or analysis involving summary judgment and other motions or hearings. These processes can and do yield valuable opinions that help shape the presentation of evidence and arguments at the actual trial or arbitration.
For more on Ms. Taylor’s discussion on Neutral Analysis and Second Opinions, please read the full article from Law.com by clicking here.
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Posted in Dispute Resolution | Tagged Dispute Resolution, evaluation, negotiate settlement, neutral analysis
Why are Attorneys Afraid of Conflict in Mediation?
Posted on January 9, 2015 by Jeffrey Grubman, Esq.
Jeffrey Grubman, Esq.
Jeffrey Grubman, Esq.
By Jeffrey Grubman, Esq.
The mediation process has evolved significantly over the past few decades. Mediation was initially viewed skeptically by trial attorneys who viewed themselves as warriors who preferred to try cases rather than settle them. Those same trial lawyers believed that if settlement was appropriate, they certainly did not require the assistance of a third party to effect the settlement. They would pick up the phone and call their opposing counsel and either work things out on their own or try the case.
As courts around the country become overburdened, mediation became a popular forum to resolve disputes. Many courts throughout the country require cases to be mediated before the case can go to trial. Consequently, attorneys have been forced to participate in mediation. Because trial attorneys were not accustomed to the mediation process, the process initially looked somewhat like a court hearing or a trial. For example, in the early days of mediation, opening statements in mediation looked and sounded very much like an opening statement at trial. Trial lawyers in the early days of mediation, and some trial lawyers still today, had a difficult time finding the balance between advocating their client’s position while proceeding in a conciliatory manner with settlement being the goal of the mediation.
Largely due to attorneys’ discomfort with finding that balance, it became commonplace in many parts of the country for attorneys not to make opening statements in mediation. A well prepared and delivered opening statement goes a long way towards achieving a favorable settlement for one’s client.
The custom of not make opening statements in certain parts of the country and in certain substantive case types has now led to not even having a joint session during some mediations. Except in the rare situation where there is the potential for violence, this is a mistake. The parties and their counsel should at least be willing to sit in the same room with one another for some period of time while the mediator explains the process and lays the groundwork for a productive day.
When there is a joint session, many attorneys instruct their clients not to say anything during that session. These attorneys apparently believe either that their clients will say things that could hurt the client’s case or the client or the adversary will say things that could upset the other person and thereby make it harder to settle the case. The confidentiality that blankets the entire mediation process should ameliorate an attorney’s concern about his or her client saying something that court hurt the case. The fact that a litigant may say something that will upset the other party is not enough of a reason not to allow parties to speak. First, the fact that the parties are engaged in litigation is evidence enough that the parties are not happy with one another. Nobody should be surprised or devastated when one of the parties says something the other party does not like.