Cards on the Table: Resolving disputes quickly and more economically.

AuthorPeay, Stewart O.
PositionLegal Brief

In Utah, business moves at the speed of light. Innovation and change are the only constants. Unfortunately, dispute resolution and litigation--whether in state or federal court or arbitration--still move at the pace established when the Federal Rules of Civil Procedure were created generations ago. The only questions that clients ask more than "Do we have a good case?" is "How long will it take to resolve it?" and "How much will it cost?"

With many of the young companies here in Utah, especially those that may be dependent upon future funding or even eying a major transaction, the issue is not only that a dispute needs to be resolved, but it is imperative to resolve it quickly and efficiently.

Another path

Here's the good news: There is a pathway that provides the possibility of a resolution in an accelerated manner that allows the parties to control the outcome of the litigation. It also allows them to avoid spending bundles of money on attorneys and experts and return to focusing on their core business. This path is early mediation.

With almost every dispute resulting in settlement, the question that has to be asked is "Why wait?" Even if the mediation fails to resolve the case, the foundation for the settlement is often laid during the mediation session, and at worst, the issues that are really in dispute are identified and potentially refined.

There are three phases in a case where early mediation is most effective: 1) before the parties go to court or retain an arbitrator; 2) right after the parties have entered litigation but before any substantive discovery has been done; and 3) after documents and electronically stored information have been exchanged by the parties but before the costly and time-consuming deposition process has begun.

In my experience, option three is normally most preferable. First of all, by conducting at least preliminary discovery--such as reviewing key documents and interviewing key people--each party has vetted their own case. (They know their warts.) Second, it allows both sides to see the other side's documents and analyze much of what the other side has recorded, to its benefit or detriment. (They know the other side's warts, too.) Finally, through the mediation brief both parties are forced to acknowledge those warts by "putting their cards on the table." With this information, skilled and experienced counsel should be able to prepare their clients for a fruitful mediation.

Skilled counsel

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