Starting Mediation Process with ADR West
If you are in need of mediation, or need additional information on members of our panel, please download, fill out and submit the form below. You may also contact us via telephone at 719.337.7560 or send us an email.
Advantages of Non-Litigative Dispute Resolution
Mediation Advantages
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.
Why Mediation?
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.
Mediator Ethical Code of Conduct
ADR West and its mediators are subject to the codes of ethics as crafted by the American Bar Association, Association for Conflict Resolution and the American Arbitration Association. The standards were revised in 2005 and are set forth in the following link.
MEDIATION: The Most Effective Forum to Resolve Your Case
The Golden Rule: Preparedness, Preparedness and Preparedness
A major consideration in considering Mediation is whether you have enough information about your case to fully and fairly evaluate it. Unfortunately, many lawyers go to mediation with their clients, and at the end of the day walk out frustrated, embarrassed and finding themselves frantically trying to explain to their clients why the matter did not settle. Why does this happen?
The simple rule of the three P’s applies here: Preparedness, Preparedness and more Preparedness. You can never be overly prepared. Coming to the Mediation having completed significant discovery is crucial. If you are defense counsel, discussing the case in detail with your client or the handling adjuster prior to the mediation cannot be overstated. Client control plays a significant role during the mediation process, as well. Have you discussed the important issues with your client/principal? Have you prepared your case such that you will be able to discuss all the issues of contention?
If it is a personal injury matter, issues of causation and extent of injury are sure to be ripe issues. Without client control, you will undoubtedly encounter numerous hurdles in your efforts in convincing your client to agree with any settlement proposal. If you are defense counsel, being prepared means having spent time with your principal in discussing the strengths and weaknesses of your case and how best to communicate this to the mediator, who can assist you in your strategy in the negotiation process.
Being prepared also means coming to the mediation with a realistic outlook of the merits of the case. What is the value of your case given your best scenario vs. your worst scenario? What is your comfort zone for a realistic settlement? Are you willing to exit your comfort zone in the spirit of compromise if it means the case will settle?
As part of your preparation, you need to consider these important questions prior to mediation. Providing a brief to the mediator prior to the mediation is extremely helpful, so that the mediator will have a good idea as what the areas of contention are and will be apprised of the parties’ respective positions prior to the negotiation.
Pre-Litigation vs. Post Litigation Mediation?
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.
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