This is part 2 of a 3-part series on contract dispute resolution. – TW
Fighting Smart: A Guide to Dispute Resolution, Part 2
By Roxann Smithers, Esq., guest writer
The mediator is not empowered to resolve the dispute or tell the parties what to do. The mediator will help the parties see the relative strengths and weaknesses of their cases. The goal is to get the parties in the frame of mind to make and/or accept reasonable settlement terms. Parties may not only factor in the chances of success in arbitration or at trial, but the costs they will incur if they take the matter through arbitration or litigation. For this reason, it is extremely important that the parties put forth a strong argument as to why their claim or defense will be successful if the matter is escalated to the next dispute resolution phase. Legal counsel is usually involved in this phase. Counsel will provide the mediator with an advance summary of the matter, its client’s positions, and evidentiary support for that position. This helps the mediator be an effective Devil’s advocate when the mediator is meeting with the other party. The opposing party should feel that they will get a better deal at mediation than if the dispute escalates. Should the parties reach resolution, the attorneys will work together to memorialize the settlement terms.
If both negotiation and mediation efforts fail to resolve the matter, the party asserting the claim will have to make a decision as to whether to take the matter to arbitration or litigation. The contract may give one party the choice. At this third phase, a third party makes a binding decision to resolve the matter and tells the parties what to do. Arbitration is similar to the mediation in that the parties can arrange for this on their own or through an ADR entity. Further, the parties agree on the arbitrator or the group of arbitrators who will decide the matter. In litigation, the parties will share a role in selecting the jury that will render a judgment. Both arbitration and litigation are more involved than negotiation and mediation. They will require a larger role for legal counsel and require more time of the company representatives. Additionally, it will take longer for the parties to reach. It is important for parties to take the realities of litigation, including costs, into consideration when evaluating settlement proposals and possibilities.
Roxann S. Smithers, Esq. provides commercial, construction, premise liability, and contract review/negotiation services at her SMB-focused firm, The Law Offices of Roxann Smithers, LLC in Atlanta, Georgia. Ms. Smithers’ practice includes both litigation and transactional work. Ms. Smithers can be contacted at rsmithersLORS@yahoo.com or (404) 981-7928.