Dispute Settlement Counsel

Archive for January, 2012

Two parties find themselves in a discrimination case and they do not want to litigate it; they want to resolve it out of court.  But clearly one of the interests – often a primary interest – is determining the appropriate measure of money damages to be paid to the person who was allegedly discriminated against.

If you went to court, this would be decided by a judge or jury after hearing testimony and considering documented evidence, after a year or two or more of litigation process.  If you chose arbitration, the arbitrator would make a binding and un-appealable decision after considering the applicable law and the relevant evidence and testimony presented. If you mediated the matter, a mediator would either be evaluative in his approach and offer information from cases with similar circumstances and help parties reach a number they feel is fair, or use a shuttle diplomacy style, going back and forth between the parties in separate rooms and in confidence.

The shuttle mediator will basically chisel away at the gap between the parties’ number until they reach a “yes” number.  Every so often he will forcefully or subtly remind the parties that if they don’t settle, they will incur the extra expenses that come with continuing the litigation and eventually trying the case.  He will also test the risk aversion levels of the parties by reminding them that juries are very unpredictable and uncertain and the parties really don’t how a jury might decide.  He will compare the certainty of a number they agree upon through mediation with the unknown of a potential runaway jury that could either come back with a defense verdict or award a huge amount of damages.  He will stress that that decision is then out of their control, and could then get appealed. Read the rest of this entry »

You find yourself in a dispute, let’s say it’s a sexual harassment case and you are the employer and alleged wrongdoer. You don’t want to litigate this matter for lots of reasons: it’s too expensive; it would take too long; it would draw too many of your employees, including you, away from the business; it would give the company bad publicity; it would polarize your employees and pit them either for or against the alleged victim, and it would be emotionally draining for those involved. Add to that the facts that the alleged victim is a valued employee you don’t want to lose and you want to be seen in the workplace as an enlightened employer and a company people want to work for because they are treated well.

All good reasons why you don’t want to litigate this matter. Add to those one more: If you litigate, the process, the pace and timing and the outcome is out of your control and someone else – a government agency, a judge, an arbitrator or a jury – will decide the case.

You have heard about alternative dispute resolutions methods like mediation or collaborative law (CL), both of which offer you many of the advantages that litigation cannot offer you. But the one thing those methods don’t give you is closure: If the matter doesn’t get resolved by using CL or mediation, then you have to start over and go to court or an arbitrator, draining you of more time and more money. You want the control over the process and outcome and you want the privacy and confidentiality. You want a less expensive and more streamlined efficient process, one that achieves resolution in a few months or less, not a few years. Read the rest of this entry »