Soon after a demand has been made or received, counsel should meet in person to discuss the parties' differing perspectives and begin exploring the potential for resolution. Meeting for lunch allows the discussion to proceed more informally and in a neutral venue. Due care should be given to the first contact in writing. Aggressive wording in a demand, or the promise of a vigorous defense, is more likely to elicit a pugnacious approach than persuade the opponent to consider alternatives to a formal dispute.
If counsel can make some progress toward consideration of a mutually acceptable resolution, the parties, or representatives of the parties, can be asked to participate in a subsequent meeting—a sort of mediation without a mediator.
Exchange of Information
Experience in litigation induces a tendency to hide the ball. Certainly there might be information in some cases that counsel should consider not disclosing early, but a knee-jerk decision to limit disclosure as much as possible is not helpful to finding a resolution. The parties need to have some basis for gauging the strength of the opposing party’s case and the risk involved in relying on litigation.
Candidly discussing a client's position and being willing to generously determine documents and names of witnesses that can be provided to opposing counsel not only aids the chances of fashioning a resolution, but, if the case needs to proceed to trial, can also make preparation easier and more efficient.
More significantly, a willingness to openly discuss one's case can indicate confidence to the opponent and can build the trust necessary for effective negotiation.
Negotiation and Mediation
After preliminary discussions and exchange of information, the parties might very well be in a position to effectively attempt resolution in direct negotiations between counsel, involving the parties as necessary. If there has been progress but negotiations are stalled, the parties might then consider mediation.
Mediation is often considered as consisting of a single conference after a lawsuit has been filed and there has been some discovery. That is not necessarily the best approach. Pre-suit mediation many times can result in a full settlement, or at least in a narrowing of the issues for a suit. Mediation can take place in more than one meeting, with issues progressively addressed and resolved.
The necessity of the parties' thorough preparation for mediation cannot be overemphasized. Counsel must persist in developing with the client the range of a resolution that the client might consider as acceptable. Making the distinction between what result a client wants and what the client would consider accepting often is not easy. One approach is to ask the client to not only anticipate what the client might accept, but also what the opposing party will propose.
A good mediator will contact counsel for the parties prior to the mediation. If the mediator does not initiate the contact, counsel should do so to ensure that the mediator has a complete understanding of the party, the party's personality, and any particular problems that might arise in the mediation conference.
The use of arbitration in attempting early resolution should not be foreclosed, even if the parties are not bound by an arbitration provision in their agreement. If the parties’ contract does not provide for arbitration, the parties still can enter into an arbitration agreement with an administering organization or fashion their own arbitration. If a party is concerned about the degree of information compiled at the time but is still interested in early resolution, a nonbinding arbitration might be attempted. Getting a nonbinding award can get the parties over an impasse, but by engaging in nonbinding arbitration, the parties might be forgoing a potential benefit of the process.
Counsel often complain about arbitration as being too costly and time-consuming. Counsel and the parties, however, have the ability to control both time and costs by not approaching arbitration as just another form of litigation. Arbitration can be efficiently conducted with minimal or no discovery; testimonial evidence other than that directly material to the issues may be submitted by affidavits. Proceeding in this manner is not unusual in international arbitration, during which millions of dollars can be at issue. Arbitral institutions, such as the American Arbitration Association (AAA), recently have developed cost-saving approaches and can assist the parties in fashioning a procedure that amply fits their needs.
Other Resolution Methods
Although mediation and arbitration are the most commonly utilized methods of resolution outside of court, there are other methods that can be considered in light of the parties' particular situation. The parties, for example, might agree on a trusted and experienced referee or referees, to whom each party can make a succinct presentation of the issues and evidence to obtain an assessment or advisory opinion. AAA offers such a service, and some courts provide such a procedure where a lawsuit already has been filed.
The Benefits of Early Resolution
Most cases are settled or disposed of without trial, so it makes sense to reach settlement early, if possible. Getting to trial is increasingly difficult. A recent report on federal court activity stated that jury trials were being held in only a fraction of one percent of the cases in which a jury was demanded. Discovery has become oppressively expensive, particularly with the increasing use of electronic discovery. Recent research concluded that 60 percent of the costs of litigation can be attributed to discovery, yet only 10 percent or less of evidence obtained in discovery is used at trial.
Counsel might believe that getting cases resolved early is against their financial interest because it may involve large concessions and discontinue fee billing. In most cases, such belief would be unwarranted. Consultants consistently demonstrate that law firm profits rise in proportion to the number of cases closed. Even if such conclusions were subject to skepticism, one cannot disagree with the proposition that parties will appreciate prompt and economical resolution and will be appreciative of lawyers who achieve it.