I am frequently contacted by companies and individuals who find themselves involved in disputes and are anxious to pursue their remedy in court. Some controversies require the intervention of a judge or jury, but often the best advice that can be shared with someone who is eager to jump into litigation is to remind them that initiation of a lawsuit should always be a carefully considered business decision. Connecticut law provides limited opportunities to compel an opposing party to pay for legal fees, so the dispute must justify the effort and expense of pursuing a suit to judgment.
Rather than limit options to abandonment of a civil claim or substantial investment in litigation, civil litigators are now steering clients to alternatives that have long been employed in the divorce arena. Mediation and collaborative dispute resolution are emerging as methods to bypass the process of litigating civil disputes in court.
Pursuing mediation as an effective alternative to litigation
Mediation has long been an option to attempt resolution of civil claims, usually after a lawsuit has been initiated. Now, more parties involved in disputes are moving directly into mediation as a means of seeking a more efficient option for resolution without the prelude of litigation. By sidestepping traditional civil litigation parties are seeking to avoid the delay, expense and complexity of the judicial process.
Generally, in mediation parties select and pay for a neutral mediator who works with the parties and their legal counsel to seek an accord. Rather than approaching the dispute from the perspective of litigation, where both parties focus on prevailing at trial, parties that pursue mediation do so with the expectation of compromise. The mediator considers the position of both sides and helps them arrive at an equitable agreement. Negotiations between the parties may proceed through multiple sessions with the mediator, whose role is to be an unbiased guide through the negotiation process.
Using the collaborative process to avoid a lawsuit
A second alternative to litigation is taking a collaborative approach to the dispute. Parties to the collaborative process, and their counsel, must agree at the outset to proceed toward settlement in good faith without initiating suit while pursuing settlement. If the case doesn’t settle the attorneys who are involved in the collaborative process voluntarily disqualify themselves from participating in any subsequent court action. The need to start again from scratch with new counsel provides further incentive for the parties to work diligently toward resolution.
While judges are restrained by existing legal standards when arriving at a decision, the open-ended nature of mediation and collaborative dispute resolution may allow parties to design more creative solutions to their controversies. Parties can enter the process cooperatively and avoid much of the disruptive and antagonistic sentiment that is generated when one party is at the receiving end of a lawsuit. This is especially helpful where parties are seeking to resolve disputes between businesses that have ongoing relationships, or when the controversy involves an inheritance or closely held company where preservation of familial relationships are as important as resolving the underlying dispute.
Why resolve disputes through mediation or collaboration? Some compelling benefits:
The efficiencies of mediation and collaborative dispute resolution are inherent in the control provided to the parties. In court, litigants are required to follow judicial schedules and procedural rules that often lead to additional expense. When parties directly define how a dispute will be resolved, they can better control the process, ensuring that an attorney’s time will be spent productively, and not waiting in a courtroom hallway for an opportunity to be heard.
Parties who proceed through mediation or the collaborative process dispense with costly and time-consuming motion practice. Discovery, which is often contentious in litigation, can be replaced by agreements between the parties regarding the voluntary sharing of information.
If an accord is reached at the end of a voluntary process, the parties can memorialize the agreement in a contract; or, if something more formal is required, they can stipulate to a judgment in court that can then be enforced in the same fashion as a judgment that is entered following trial.
If you or your business are involved in a dispute that might benefit from mediation or collaborative dispute resolution, call Cacace, Tusch & Santagata today.