Business Mediation & Settlement Strategy

Litigation avoidance does not mean “giving in.” Settlement does not mean being weak. It does mean being firm, prepared and flexible.

Overview

Businesses also sometimes find themselves immersed in a lawsuit with seemingly no way out. But a fresh look at the strategy and the help of a skilled mediator can lead to a resolution that seemed unattainable just a few months prior. Sometimes, a lawsuit can be avoided in the first place by addressing problems early, before they explode into full-scale dispute.

ASG Law assists clients in minimizing the risks and costs of disputes with the following services.

Early Case Evaluation

Businesses sometimes file (or respond to) a lawsuit first and ask questions later. Unless circumstances demand quick action (such as a statute of limitations), an initial case evaluation when the dispute arises can often save costs and lead to early resolution. Analyzing legal causes of actions and defenses, reviewing key correspondence, and interviewing witnesses allows the business to identify strengths and weaknesses early.

An economic analysis is also an important part of this process. The question of whether and how much a party can pay for a settlement or judgment is often ignored until well into the litigation. A thorough analysis of the financial aspects of the case include the defendant’s ability to pay a potential judgment or settlement (i.e., the liquid assets), as well as the ability to fund litigation from ongoing operations. Simple math often reveals how much money and time a lawsuit is (or is not) worth.

Finally, many decision makers fail to consider the business risks of a dispute, as well as the opportunities. How much productivity will be lost with employee depositions? Will your customers receive subpoenas for documents? Will your bank? On the flip side, are there unidentified business opportunities between you and the other side?

An early case evaluation allows a business to tie up any loose ends, such as required notices. But it also allows the business to value the dispute, estimate the costs, and make educated decisions as to next steps.

 

Mediation Preparation and Representation

Some contracts require the parties to mediate their disputes prior to the filing of a lawsuit. Even without such a contractual requirement, parties can always agree to mediate, before or during litigation.

Mediations generally involve an experienced individual (the mediator) who meets with both parties and attempts to help them reach a resolution. Most mediations are held in person, and usually (but not always) last less than a day. Sometimes, mediators may help the parties continue discussions remotely after the initial meeting. Mediators often meet with all parties (and their lawyers) in the same room, but then allow the parties to divide up so that she or he can meet with them separately.

Mediations are generally non-binding, meaning that no one can be compelled to agree to a certain resolution. Statements made during mediations and settlement discussions are also generally considered confidential and cannot be used in subsequent litigation if a resolution is not reached.

Preparation is the key to a successful mediation. It is an opportunity to show the other side the strengths of your case, learn the weaknesses, and flesh out the economic and business issues.