Non-litigative dispute resolution has a number of significant advantages over traditional litigation.

• Resolving disputes creatively can save time and money.
• If 95% of cases are going to settle anyway, they should be settled as early as possible.
• Innovative dispute resolution strategies give the parties control over both the process and the outcome of the dispute.
• Creative dispute resolution can give the parties confidentiality and preserve their future relationship.

Discourage litigation.  Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser, in fees, expenses and waste of time.

– Abraham Lincoln

Traditional dispute resolutions processes are failing to meet today’s needs.  Courts are overcrowded, disputants are angry, litigation costs are skyrocketing, relationships are being destroyed, the complexity of commercial litigation seems endless, and injured parties refuse to settle.  Disputants are frustrated with the litigation process and the procedural issues, and posturing for the best negotiation position. They are angry with protracted negotiations, long court delays and discovery processes that consume huge chunks of time and legal budgets.

Disputants want their conflicts resolved quickly and fairly.  Instead they get protracted, intrusive and expensive litigation which they do not understand and cannot control. To meet these demands, dispute resolution professionals are rediscovering and developing resolution strategies that provide ways to resolve disputes with creative dispute resolution processes.

Reduced Legal Costs

The traditional pre-trial settlement model places settlement “on the courthouse steps” or in a judicially mandated settlement conference within weeks or days of trial.  Unfortunately this is after the parties have already expended considerable sums on discovery. The parties should ask themselves, “If we’re going to settle anyway, why not make it earlier rather than later?” Any number of creative processes can make early settlement more likely.

As much as fifty percent of the cost of litigation can be saved through creative dispute resolution.  A recent study conducted by Pepperdine Law School found that two-thirds of non-litigative process users were able to save money by using such processes.

Reduced Time Spent on Litigation

Dispute resolution processes involve summary or abbreviated implementation. A summary trial or a mini-trial often takes a day or less. Virtually all innovative dispute resolution processes take less time than trial. Because non-litigative processes can operate outside the court system, a dispute need not wait its turn on an overcrowded court docket. The presence  of a contractual dispute resolution procedure may also provide impetus to resolve a dispute without even using the process.  Even if a dispute is not fully resolved prior to litigation, the process is often helpful in narrowing the issues for ultimate litigation.

Control Over Who Decides the Dispute

Disputants can choose who their mediator will be, and thereby retain the power of decision-making.

Increased Party Involvement

The constraints of typical courtroom procedures often reduce meaningful problem-solving communication to a minimum. Creative processes, on the other hand, allow for more informal communication, reducing posturing and the exploitation of procedural rules.  Innovation can short-circuit the escalation of hostilities often associated with formal litigation.

Potential for Creative Problem-Solving

Courts can provide only a limited range of remedies, usually involving money damages or narrow injunctive relief. Often the parties’ interests lie in other areas, such as recognition or in an apology. In the creative process, the parties can explore these options.

Confidentiality

Almost all litigation is public. Parties prefer the privacy of a non-litigated solution, for example where reputation or trade secrets are involved.

Can a case go to mediation if the matter is not in suit?  Absolutely.  However there are some guidelines and limitations that must be first considered by both parties and their clients.

Particularly in personal injury cases if there is insurance coverage, an insurance adjuster may consider mediating a case in the early stages after a claim is submitted to the carrier.  Even though the matter is not in suit, many times the handling adjuster is willing to take the matter to a pre-litigation mediation to resolve the case short of having to go through the litigation expense.  However, pre-litigation mediation is  generally for those smaller non-complex cases where the adjuster feels that sufficient information has been provided to properly evaluate the case.  For example, if you’re representing a plaintiff in an auto related and  liability is uncontested, you’ve provided photographs of the property damage and police reports to the adjuster,  the claimed  injury is minor, all treatment has been conducted, the plaintiff is now pain free, and the billings and complete medical records having been forwarded to the adjuster, than there may be a good opportunity for a pre-litigation mediation.  The adjuster may still require a statement  from the plaintiff before the mediation to find out the details of the claimed injury and/or to find out what type of witness the plaintiff will make. The adjuster may also want to confirm any lost earnings claim and/or residual complaints.  A simple stipulation between the parties can easily address any pre-litigation discovery issues prior to the mediation.

If the case  involves business matters or employment disputes such as sexual harassment or wrongful termination, it is likely that considerable formal discovery will be needed to flush out the issues and alleged damages. These types of cases generally are not resolved by way of pre-litigation mediation forums due to the sensitive and complex nature of the claims that generally require considerably more information to properly evaluate the case.