Dispute Settlement Counsel

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.

How would this issue of money damages get handled in Collaborative Law (CL) addressing the interests of the parties?  Can the CL process claim any advantage over any of the other methods of resolving disputes on the matter of money damages?

Collaborative lawyers bring a certain amount of practice area expertise and will be able to assess the law and facts to help the parties come to a satisfactory outcome through the collaborative sessions.  CL also offers the advantage of its unique method of utilizing neutral experts.  The type of expert they could bring in would be a case evaluator, an expert in determining the value of a case, as well as the strengths and weaknesses of each party’s position.  The “expertise” the evaluator brings to the CL process is the ability to look at the facts and the law and offer credible information on the two questions of liability and damages.  The evaluation is just that – something offered to the parties for guidance to help them narrow the gap between their positions.

For instance, the case evaluator can review the case and advise the parties that he sees the case as being about 65 % likelihood of liability on the alleged wrongdoer and assess the damages in a case with facts like these – based on prior settlements, verdicts and experience – at approximately $100,000.00.  Thus, his expert opinion would be that money damages might be in the range of $65,000 – $80,000.

In the collaborative process, the parties determine the outcome, and can either accept the evaluator expert’s assessment, use it as a guide to some other numbers they reach and agree upon, or reject the assessment.  It’s unlikely that either party would reject it, having received useful information from an expert that gave them a good sense of what damages may be if the matter went on to an outside decision maker.  They got this information in a fraction of the time and at a lot less cost.

True, the parties had to bear the extra cost of the evaluator but that cost was shared equally by the parties, so they paid half and got a much more credible and objective opinion than if each hired their own expert.  And yes, their CL lawyers had to provide him with the information – either in a collaborative session or via a written memorandum.  But that is the advocacy that you want from your lawyers, and it is streamlined advocacy directed to a professional expert who understands these kinds of cases and is not swayed by the things juries are often swayed by: Looks, style of delivery, liking a lawyer or party or witness or disliking them, or their reaction – often negative toward a plaintiff – to having to take time out from work or life and come and serve on a jury.

The parties also avoided spending a boatload of money on experts if each had to retain their own, further discovery, motion practice, preparation for trial and trial itself, and possibly an appeal, not to mention the drain on the parties’ time taken out of their jobs and the emotional drain on each party.   It was all done privately and confidentially.  And in CL, the parties, rather than a jury, judge or arbitrator, control the pace and timing of the process and its outcome.

This is just one example of the flexibility, agility and efficiency that the CL alternative offers people.