Dispute Settlement Counsel

I’m often asked how case evaluation is used to resolve a dispute.  The best way to explain is to tell about a case that was resolved using a case evaluator/mediator.

One important prerequisite is that the parties to the dispute – and their lawyers — have to want to resolve the matter quickly and approach it like a problem to solve, not a fight over who is right.  This is sometimes driven by the nature of the case, or by the ability of both parties to see that their interests are not best met by prolonged, expensive and cumbersome litigation.

In this homeowner-contractor dispute, both parties needed to get the issues about payment and continued or discontinued work resolved quickly.  The homeowners’ family life was being disrupted the longer the dispute remained unresolved and the contractor’s ability to earn more money and deploy his resources effectively hung in the balance.   Both lawyers realized that neither client would benefit by the costs and length of litigation, and the matter was not a clear cut case in which one side was clearly right.

I suggested the use of a neutral case evaluator, a lawyer very well versed in construction cases, both with respect to the relevant facts to focus on as well as the state of the law as to these kinds of disputes.  To his credit, my counterpart counsel agreed to put any litigation on hold and we were both able to persuade our clients to try this approach.  There was one procedural snag:  the contractor had put a mechanic’s lien on the house and needed to file a complaint within 90 days to prefect the lien.  We agreed to allow the contractor to file the complaint in order to preserve his right to the lien, and then there would be a standstill agreement and a hold on the litigation to allow time to work with the case evaluator.

The case evaluator’s task was to review the applicable facts and law, as submitted to him confidentially by both sides.  If the case evaluator felt the need to go to the property and observe the condition of the home first hand, that was also agreed to by the parties.  He would then come back to each party separately and discuss his assessment of the facts and law, and confidentially offer feedback on the strengths and weaknesses of each side’s position.

Often in disputes, one side has a slightly incorrect assessment or opinion of its case and the strength of it.  The case evaluator ’s role is to point this out to that party.  It’s one thing when that message comes from the attorney on the other side; clearly, the party hearing it has to view that as the other side’s attorney merely zealously advocating for his client’s position.  But when the messenger is someone who has no stake in the matter, who is neutral, whose fees are getting paid equally by both sides and who has experience in these kinds of cases, the information is taken much more soberly.

In our case, that is what happened.  The case evaluator delivered his assessment to each side.  One side adjusted its position accordingly and a large gap between the positions of the parties became considerably smaller.  The negotiations continued between the parties, and they moved closer to settlement, but then reached a point of no more movement.

At that point, we mutually exercised our option which had been in our agreement with the case evaluator and requested that the case evaluator shift into the role of mediator to help the parties resolve the matter.  In one relatively short mediation settlement, the case evaluator-turned mediator, working with the lawyers, was able to facilitate a settlement.   The entire case took about four months and probably cost 20% of what litigation would have cost the parties.

That’s how valuable using case evaluation can be in the right situations.

One Response to “The Case for Case Evaluation”