CONTRACTS & NEGOTIATIONS
Making the impossible, possible. Specialist counseling can help to attain greater legal security in relationships with third parties, control and safeguard confidentiality and knowledge within the company, improve Intellectual Property asset management through certain guidelines, avoid possible infringements upon the rights of third parties and by third parties, and provide action protocols for specific cases and challenges.
Dispute Resolution, Litigation, Arbitration, Mediation, Negotiation and Mitigation
What are your options? We are all familiar with the most traditional dispute-resolution process of our civil justice system, litigation and trial with a judge or jury deciding who is right or wrong - where someone wins and someone loses. However, there are many other options available. Negotiation, mediation and arbitration - often called ADR or alternative dispute resolution- are the most well-known.
Whether you are involved in a family or neighborhood dispute or a lawsuit involving thousands of dollars, these processes should be considered. They are often the more appropriate methods of dispute resolution and can result in a fair, just, reasonable answer for both you and the other party. Settlement and compromise have long been favored in the legal system. In fact, most cases that are filed in a court do settle. Only five percent of all cases filed go to trial. ADR procedures are excellent options for you in dealing with controversy, allowing you to reach resolution earlier and with less expense than traditional litigation. In fact, many courts require parties to consider some form of ADR before going to trial. The following processes describe ways to resolve disputes.
You may negotiate directly with the other person. You may hire an attorney to negotiate directly with the other side on your behalf. There are no specific procedures to follow - you can determine your own - but it works best if all parties agree to remain calm and not talk at the same time. Depending on your situation, you can negotiate in the board room of a big company, in an office or even in your own living room.
Negotiation allows you to participate directly in decisions that affect you. In the most successful negotiations, the needs of both parties are considered. A negotiated agreement can become a contract and be enforceable.
The mediator manages the process and helps facilitate negotiation between the parties. A mediator does not make a decision nor force an agreement. The parties directly participate and are responsible for negotiating their own settlement or agreement.
At the beginning of the mediation session, the mediator will describe the process and the ground rules.
The parties or their attorneys have an opportunity to explain their view of the dispute. Mediation helps each side better understand the other’s point of view. Sometimes the mediator will meet separately with each side. Separate “caucusing” can help address emotional and factual issues as well as allow time for receiving legal advice from your attorney. Mediations are generally held in the office of the mediator or other agreed location.
Arbitration is typically an out-of-court method for resolving a dispute. The arbitrator controls the process, will listen to both sides and make a decision. Like a trial, only one side will prevail. Unlike a trial, appeal rights are limited.
In a more formal setting, the arbitrator will conduct a hearing where all of the parties present evidence through documents, exhibits and testimony. The parties may agree to, in some instances, establish their own procedure; or an administrating organization may provide procedures. There can be either one arbitrator or a panel of three arbitrators. An arbitration hearing is usually held in offices or other meeting rooms.
Litigation is begun by filing a lawsuit in a court. Specific rules of procedure, discovery and presentation of evidence must be followed. The attorney for the other side will want to take your deposition to learn more about the facts as you see them and your position in the case. There can be a number of court appearances by you and/or your lawyer. If the parties cannot agree how to settle the case, either the judge or a jury will decide the dispute for you through a trial.
A trial is a formal judicial proceeding allowing full examination and determination of all the issues between the parties with each side presenting its case to either a jury or a judge. The decision is made by applying the facts of the case to the applicable law.