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Pre-Suit or Pre-Litigation Mediation

As the title suggests, the object is to engage all parties in a dispute resolution process prior to the initiation of any litigation, or prior to filing a demand for Arbitration. 

 

The first challenge in Pre-Suit Mediation, is to recognize that there are no Court Rules to to guide the process.  The Solution is to start

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with a Mediator suggested Protocol as a substitute for the Litigation Rules, and work to customize the the Protocol to address case specific requirements.  Since the parties are interested in Pre-Suit Mediation they are predisposed to working collaboratively and with the Mediator's assistance, the ground rules can be quickly adopted.

Here are some of the significant features of Pre-Suit or Pre-Litigation Mediation:

  • Least disruptive to existing Business Relationships (especially important where ongoing or prospective business relations are at stake, for internal shareholder or member disputes, family controlled businesses, etc.)

  • Business Principals maintain more control of the Proceedings, there is less anxiety for Principals

  • Greatest opportunity to customize process, less formality, more flexibility 

  • Opportunity to demonstrate cooperation, send positive message about settlement

  • Quicker results, lowest option in cost

  • Private, No Public Records

  • Confidentiality of Proceedings and settlement discussions

  • Easily adapted to Video Conferencing

  • Easy to customize the ADR Process using my Framework or Protocol for Pre-Suit Mediation, which include:

    • PreMediation conference with each party well in advance of a Hearing, often using Video Conferencing.

    • Mediator Assistance with Information Exchange

    • Working Session; a conference room setting designed for information exchange among project staff of both parties; the objective is to understand each other's positions, without acquiescence, no pressure to make decisions. Video Conferencing is often used for the Joint Working Session

    • Executive Hearing following Joint Working Session where executives complete negotiation and compromise. This Executive session can be in-person, or by Video Conference.

The importance of TRIAGE - The Determination of Priorities for an Action

Is Pre-Suit Mediation the right strategy, the correct priority? If the question is put to your client, the desire is universal, and the answer obvious. But what are the means, or framework to resolve serious business disputes without the rules of litigation?   It is axiomatic that business disputes should be settled once the parties have sufficient information to make reasoned decisions.  I propose this challenge can be met using the Framework or Protocol discussed below.

The following documents are available to support Pre-Suit or Pre-Litigation Mediation:

  • A Framework or Protocol for Pre-Suit or Pre-Litigation Mediation for Business Disputes

I have developed a Framework or Protocol for Pre-Suit Mediation for Commercial Disputes to provide advance instruction to the attorneys and principals of what I consider an integrated set of Best Practices for a complex business dispute at Pre-Suit or even Early Stage mediation. This Framework or Protocol is only a suggestion, it is improved by integrating the principals' end stage objectives, along with the attorneys' and the mediator’s experience with successful techniques that resolve disputes.  

I've also provided a link to my Protocol published in the Oakland and Macomb County Legal News.

  • PreMediation, A Best Practice I have prepared a white paper describing this Best Practice in more detail. It starts with Pre-Hearing conferences with each side well in advance of the scheduled Hearing.  Read the entire white paper for details.

  • Pre-Litigation Stand-Still, Status Quo and Tolling Agreement.  Sometimes, attorneys are concerned that delaying litigation will work to the detriment of their client, or that they will waive procedural advantages.  The suggested Stand-Still, Status Quo and Tolling Agreement can provide assurances that proceeding with the Pre-Suit Mediation will not waive important legal rights or restrict litigation strategies in the future.

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  • Mediation Agreement for Pre-Suit or Pre-Litigation Engagement.

    • Mediation is intended to be flexible and can be customized to address specific requirements of the parties’ dispute. 

    • The Mediator encourages counsel to consider and discuss these process options with the Mediator as early as possible so that process suggestions can be incorporated into the Mediation, with the objective of improving the likelihood of a satisfactory settlement.

    • I'm always available, and excited to further discuss how to design an appropriate ADR process for your case.

  • Case Studies - I've provided Case Studies dealing with successful Pre-Suit or Pre-Litigation Mediation.  

  • Closely Held and Family Business.  Mediation of  closely held and family business disputes invariably involve assets held in trust or have financial implications for estate plans. As  a practicing attorney, I was an advisor for client's estate plans, acted as trustee of client estates and litigated disputes involving estates.  Since 2002 I have been an approved  Mediator for the Oakland County Probate Court.  This experience as an attorney and the skills I've developed as a mediator transfer directly to business disputes involving trust administration and probate administration to produce leadership in resolving family based issues.

Please review the ADR References, organized by the following categories:

  • Auto Supplier Disputes

  • Construction Contract Disputes

  • Business Contract Disputes

  • Business Organization Disputes, including closely held and family businesses

  • Non-Compete, Breach of Confidentiality, Unfair Competition

Practice Pointer for Attorneys

A threshold task in Pre-Suit Mediation is agreeing on the right process leader. See the section in this website dealing with Select a Mediator for helpful tips.

In the unlikely event your client is unsuccessful in resolving the dispute at the "Pre-Suit" or "Pre-Litigation" phase, they will nonetheless leave with the confidence of having attempted to settle the dispute, and proceed with an informed understanding of the necessity of further litigation, and be more accepting of the costs and delays associated with the formal litigation process.

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