Resolving pre-litigation disputes is a more cost-effective and private way of dealing with problems that are headed for the courtroom. Litigating any issue can be very costly, and the results are not assured. There are some pitfalls along the litigation path that can lead to something far less the expected results. Judges are predictable only to a point, but juries seldom are. Witnesses may not be as helpful as they were thought to be, and evidence doesn’t prove to be as important as it was believed to be.
The attorneys at NM Law, APC have extensive experience in successfully resolving pre-litigation disputes by using some of the procedures that have proven to be very successful. Our first step is to understand thoroughly how the dispute arose and what has prevented its resolution. We will also determine if California law requires the filing of a formal pre-litigation dispute notice with the other party or parties.
We believe that an attempt at negotiating a resolution should be the first step. This allows us to communicate directly with attorneys for the other party to try to reach an agreement on a resolution. A face-to-face discussion with attorneys present can get to the real issues and achieve an understanding of the points of contention. Attorneys will also be better able to advise their clients about the aspects of the issues that are covered by the law. This will often bring about an acceptance of the importance of resolving the dispute outside of court. We will have a much better idea of what to include in a lawsuit if the negotiation fails and other forms of pre-litigation dispute resolutions are unacceptable.
Mediation is another form of resolution that can avoid litigation. A mediator is selected by the agreement of all parties, and their job is to assist both sides in resolving their differences through an informal and confidential process. We will actively participate in the discussions aimed at finding a resolution for the conflict. Evidence can be presented, but witnesses are not permitted. The mediator has no power to decide the issue, and those involved can turn to other methods for resolving the conflict.
Arbitration is a process conducted by a neutral arbitrator who is appointed by the agreement of both sides to the dispute. The arbitration is more formal than a mediation but much less so than a trial. Both sides make presentations which could include documents and other exhibits related to the dispute. Witness testimony can also be provided during an arbitration. The parties can agree that the arbitrator’s decision is final or they can agree that the decision is non-binding. A final decision cannot be appealed, and a lawsuit cannot be filed. A non-binding decision cannot prevent the case from going to trial.
Disclaimer: This article is intended to provide a general summary of laws in the State of California and should not be construed as a legal opinion nor a complete legal analysis of the subject matter. Noelle Minto is an attorney at NM Law, APC in Tustin, California, a law firm specializing in Trusts & Estates and Business Transactions.