Having Your “Day in Court” Outside of the Courtroom

According to some recent studies, less than three percent of all civil cases result in a trial. So, if ninety-seven percent of cases are resolved before trial, what are the means by which that happens?

Enter alternative dispute resolution, or “ADR” practice.

In business litigation, ADR most often takes the form of facilitation (mediation), which uses a neutral facilitator who helps the parties to settle their dispute. The facilitator does not have authority to decide the case, but instead guides the parties to a settlement with thoughtful counseling. Further, a facilitator asked to adopt an “evaluative” model will consider the strength of each party’s position and attempt to persuade each side about their risks. Thus, while the parties and their attorneys must advocate their respective positions, they must simultaneously consider the other side’s position as well.

Historically, parties and their attorneys decided whether they would employ ADR, but increasingly judges are taking the lead. For instance, Oakland County Circuit Court Business Court protocols require parties in newly filed cases to discuss selection of “a mutually-acceptable facilitator” prior to their first conference with the assigned judge, and it is becoming common for judges to order “early facilitation.” (In which case, the parties may be required to facilitate within weeks of the first case filing.)

The good news is that, if conducted in a thoughtful fashion, facilitation can create an opportunity to resolve a dispute before substantial costs are expended. Additionally, parties who have legal claims – but are hesitant to pursue them for fear of the inconvenience and expense of a trial – should take some comfort in knowing that it is statistically probable that the case will ultimately settle out of court.

One thing is almost certain: ADR practice will continue to be relied upon by judges, parties and attorneys to resolve business disputes. And, it will be the closest that most parties will ever get to “having their day in court.”

Have questions about a business litigation issue? Want to know more about ADR? Give us a call at (248) 477-6300.

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