Alternative Dispute Resolution Prior to Litigation
Tuesday, October, 22, 2013
Alternative Dispute Resolution isn’t just for litigation anymore.
Mediators are trained to help resolve disputes. Although most parties only encounter mediation once a lawsuit has been filed, mediation can (and should) be employed to resolve disputes well before the initiation of litigation, as well as to help parties prepare for litigation or an alternative dispute resolution process. This is particularly true in disputes involving multiple parties, multiple claims or complex issues, such as construction or commercial disputes.
So what can a mediator do to assist the parties plan and manage a dispute and keep it on track to resolution?
First, the mediator can assist the parties in the exchange of information stage in preparation for dispute resolution. A mediator can be involved in at least six steps of the information exchange:
- Identifying the information to be exchanged
- Arranging for the exchange of basic and clearly discoverable information
- Deciding what additional information should be exchanged
- Ensuring the accuracy and completeness of exchanged information
- Obtaining information from people who are not parties to the dispute
- Facilitating the simultaneous exchange of information by serving as a quasi escrow agent
Next, the mediator can support the parties in
generating expert analysis regarding key issues in the dispute by:
- Facilitating the retention of neutral joint experts
- Monitoring the selection process
- Helping the parties decide whether experts may be called as witnesses or whether their reports and results may be admitted into evidence (if the dispute is decided by a third party)
- Helping identify what information is provided to the experts
- Helping develop a scope of work for each expert
In a global view of the preparation process, the mediator can assist the parties with scheduling and development of a critical-path sequencing of steps in the process.
If the parties ultimately decide to adjudicate their dispute, the mediator can further help the parties at that stage in:
- Identifying and narrowing the issues for adjudication
- Listing the expert and other witnesses to be called
- Exchanging exhibits to be introduced
- Maintaining focus on adjudicating the issues rather than engaging indiversionary tactics calculated to heighten tension between the parties.
Using mediators to help the parties with some or all of the tasks identified above can prove especially valuable to parties involved in complex or multi-party disputes by preventing peripheral or minor issues to the dispute from escalating unnecessarily, helping the parties to efficiently and cost-effectively manage the generation and exchange of information and by providing assurances to suspicious adversaries regarding the integrity and fairness of the process.
The author, Jay Lazrus, is an experienced attorney and neutral. For more information, or to retain his services as a mediator or arbitrator, please visit his website at www.raegroup. com or go to www.virtualcourthouse.com and select him as your neutral.