Pre-Litigation: Do You Have What it Takes?
Seemingly. parties tend to think they have to be in court in order to engage in ADR, when that’s simply not the truth. ADR can occur anytime and anywhere, just so long as the parties agree. But, yet, how many times have you run off to court without even stopping to ponder whether or not the parties could resolve the case themselves?
In lieu of a lawsuit, the parties can always agree to arbitrate. Right now, there is a really good reason to engage a private arbitrator over an elected judge: COVID. If you’re going to court, you’re going to a petri dish of trouble whereas arbitrations can be held online, via Zoom. The other pressing reason? Time. Court across the state have gotten bogged down due to COVID. Dockets are delayed, staff is out ill and, don’t forget, civil cases always take a backseat to criminal cases. File your lawsuit today and I bet it’s 2024 before a trial is scheduled.
If an arbitration isn’t right, maybe mediation is. But how can you tell? Here are some guidelines:
The parties must be willing.
There must be sufficient information available to both sides.
The lawyers just be giving competent legal advice.
The Plaintiff’s demand (or Defendant’s counterclaim) must be clear, justified and well-supported.
Careful planning for negotiations.
Prior negotiations.
The right mediator.
Needless to say, the advantages of pre-litigation arbitration apply to mediation. Get a quick resolution with minimal exposure to COVID-19. Pre-litigation ADR may not be right for every case. But I bet it’s right for more cases than you think.
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