When disputes erupt between strategic partners, suppliers, or competitors, a mediator can save time, money, and energy in the ADR process. The mediator can help businesses settle their disputes by focusing upon critical issues, interests, and needs of the participants without the expense of scorched earth litigation. Mediation offers creativity and problem solving that litigation and arbitration do not.
Construction cases are essentially breach of contract cases made complicated by the presence of numerous parties including owners, developers, general contractors, sub-contractors, insurance carriers and sureties, and experts retained for the litigation. While complex issues of law and fact nearly always arise, what is often needed is expertise in managing the multiple fact issues and multiplicity of parties since each case is an umbrella under which many mini-cases are assembled and often must be separately resolved.
Employment cases are often heavily disputed as to the facts, and various legal theories are usually brought forth, both state and federal. In addition, these cases can be very emotional on both sides calling for a good deal of knowledge, tact, and skill on the part of the mediator.
Entertainment and Intellectual Property
The law in this field is increasingly complicated. What used to be essentially breach of contract cases are now often heavily implicated in intellectual property issues. In addition, this is a field in which personalities can play a large part. All of this can present challenges to the attempt to achieve resolution, yet it may not be in the parties’ best interests to risk the uncertainties (and publicity) of trial.
These may or may not be in litigation. As litigated cases, they are subject to resolution before trial by way of mediation, similarly to other litigated cases. But many environmental disputes are not in litigation and can involve multiple parties engaging in a framework of mediated negotiation over many months with numerous sessions.
These can take many forms. The Homeowner Association may be in dispute with an association member, a contractor, a third party, an insurance carrier, or a combination of these. Legal issues are commonplace and personality conflicts are the rule rather than the exception. Effective mediation may overcome months or years of tangled relationships, resulting in resolutions that everyone can live with.
Medical and Legal Malpractice
These are always emotional as well as presenting complex legal and factual issues.
Whether a personal or business relationship, these can be emotionally taxing as well as often involving complex legal issues.
Tort litigation negotiations are generally zero-sum in character, in which it is seldom possible to explore underlying interests. the majority of personal injury cases are taken on the plaintiff’s side on a contingency fee basis. The parties are usually complete strangers. The main interest of the defendant is to conclude the matter with the least exposure possible. That means the positions of each side are diametrically opposed.
Negotiation in these cases always involves calculation of risk. Some people are sophisticated in their estimation of risk, while others do it fairly unconsciously, but in calculating an acceptable settlement amount, everyone takes into consideration the possibility of doing worse at trial. This is because damages for pain and suffering are hard to calculate and jury verdicts differ widely.
Often significant legal issues arise that can have an important effect on the outcome of the dispute. While the mediator does not need a treatise, an outline of legal theories is always helpful together with any particular case so that the mediator can read them before the mediation begins.
Charles B. Parselle