When faced with conflict, a dispute, or even potential dispute, the universal goal should be to act proactively to get the parties to a meeting of the minds as soon as practicable before a massive amount of time, money and effort is consumed preparing for litigation, litigating and trying the case permitting the dispute to be resolved by a random set of jurors or a judge. Resolving a conflict short of litigation and outside the uncertainties of a courtroom benefits everyone. In many instances, “getting to yes” is a process and a “fresh set of eyes” may recognize overlooked issues and ideas which will bring the parties together. Anytime you can save time and money by resolving a conflict outside of a courtroom, and determining your own fate, every effort should be made to do so.
Traditionally, many courts across the country would require the parties to mediate their dispute once prior to the case being set for trial. The mediation would generally occur following the close of discovery and often after dispositive motions had been filed. With this approach, courts realized that the time and expense of the litigation itself often polarized the parties to a degree where resolution was difficult.
Today, however, courts are utilizing many forms of alternate dispute resolution such as facilitated negotiation, mediation, mock jury trials, non-binding arbitration, and early neutral evaluation to resolve disputes sooner rather than later by getting the parties to recognize and evaluate their respective positions, see how a jury or neutral may view the dispute, etc. often before engaging in significant discovery and before the parties have come to the point where so much money has been spent on litigation that the case “must be tried.”
Many jurisdictions across the country are requiring parties to engage in alternate dispute resolution before suit can be filed. Other jurisdictions refer the parties to alternate dispute resolution shortly after the dispute is framed by the defendant filing an answer or when the parties are losing sight of the goal of resolution and are “litigating for the sake of litigating” making no real progress.
The attorneys at McLeod Brock have earned certificates in Alternate Dispute Resolution, have been appointed as arbitrators, settlement facilitators, and have represented individuals and business clients in nearly all modes of alternate dispute resolution including:
- Complex Dispute Resolution
- Facilitated Negotiation
- Voluntary Settlement Discussion
- Early Neutral Evaluation
- Mock Trials
In many instances, the attorneys at McLeod Brock will recommend alternate dispute resolution to their clients and opposing counsel pre-suit and, if that fails, continue to engage in the process as the matter proceeds through litigation until the parties come to agreement. For example, a complex dispute may be mediated three or four times during the length of the litigation narrowing the issues and reducing the time and money spent before the parties come to tenns. In these cases, the parties often realize that resolution on agreed terms is better than judgment determined by a judge or a random jury.
In other instances, the attorneys at McLeod Brock will be retained to facilitate the settlement of cases they are not directly involved in as plaintiff or defense counsel. McLeod Brock may be retained by the attorneys prosecuting or defending the case or a mediator to facilitate settlement by meeting with the litigating counsel, reviewing the facts and applicable law given their knowledge of the specific area of the law and/or relationships with the attorneys involved. For over 25 years the attorneys at McLeod Brock have facilitated the resolution of complex maritime cases, cases involving a significant number of parties, trucking accidents, mass tort cases, wrongful death and survival actions, maritime and diving cases, catastrophic casualty and property damage cases involving explosion and fire across the country working with mediators and/or neutrals or facilitating the resolution on their own.