Clients know that most commercial disputes will be settled and not tried. However, their legal and expert expense and internal distraction will increase in direct proportion to the time spent litigating prior to settlement. Clients are asking their lawyers “Why can’t the dispute be resolved earlier to reduce the process expense and business disruption?” and “What is the value of your legal services expended prior to settlement?” These questions are reflected in requests for (and monitoring of) litigation budgets and demands for alternative fee arrangements that create incentives for outside counsel to minimise legal cost. But settlement takes the cooperation of all parties, and one party’s counsel has a limited ability to make it happen sooner, even when incentives are in place.

A client-oriented process for earliest dispute resolution can be best obtained by using a multi-phase mediation process. Using the mediator’s power to confidentially investigate and diagnose the causes of the resolution impasse before any negotiation occurs, a trained mediator can suggest the process best calculated to lead to an early settlement at a minimum of cost to the parties. Such a process will be customised to address the reasons the dispute has not been settled already. For example, the settlement process may recognise that the parties are not ready to negotiate until more information is exchanged.

Jul-Sep 2015 issue

Appropriate Dispute Solutions

Talk Sense Mediation