Negotiated Resolutions

Written by Don Hoyt

Litigation is quite often unavoidable.  Somebody has been hurt by someone else.  Or someone has not been paid for their work.  Or there is a dispute over a real estate transaction.  The situations are varied. What experienced litigators understand is that there is rarely a complete victory at the end of the process.  Judges and juries have a way of seeing problems differently than the parties.  That is why a negotiated resolution is very often the best way to end the dispute. 

There are many ways to get to a settlement.  If the parties themselves cannot reach an agreement, lawyers can usually communicate objectively with each other and try to find an acceptable solution. 

If the parties and their lawyers cannot settle a matter, there are independent mediators who can try to convince the parties to each give some up ground and reach a settlement.  Mediators do not make decisions; their only tools are persuasion.  Mostly they point out the strengths and weaknesses to each of the sides.

 If mediation does not create an agreement, there are lawyers and retired judges that can act as arbitrators who will hear from the parties and  make a decision that is final.  There are usually presentations by the lawyers to the arbitrator. This option is structured but it is more informal than in a courtroom situation.  It is also less tense an less expensive. 

The agreement to arbitrate requires signatures of the parties and states the result (the arbitrator’s award) is binding on the parties; so it ends the dispute.  There are multiple ways to structure an arbitration agreement.  One common way is to agree to a high-low.  In a high-low the parties and counsel put a ceiling number as the high and a floor number as the low.  The arbitrator decides the amount independently and the parties mold the decision to ensure the figure is neither too high or too low, but within the agreement’s parameters.

Many other variables of an arbitration agreement exist, depending on the circumstances.