When to Mediate a Business Dispute – 314-394-0605

 

Ross & Voytas, LLC is a St. Louis, Missouri law firm with more than thirty years of combined experience in civil litigation and mediation. The attorneys at Ross & Voytas are licensed in Missouri and Illinois. Nate Ross is a certified mediator in Missouri. Both Nate Ross and Rick Voytas have represented business clients in mediations where the stakes range from thousands to tens of millions of dollars. The purpose of this post is to impart our experience on mediating business lawsuits in Missouri. We would be happy to talk with you about your Missouri legal matter at no charge if you have further questions. Call us any time at 314-394-0605 and speak to Nate or Rick directly.

If your company is looking to hire a lawyer for a business lawsuit in Missouri, you need to ask the lawyer what his or her strategy is for mediation. Federal Courts located in Missouri almost always require the parties to mediate the case according to a specific schedule. State Courts located in Missouri rarely require mediation, and the parties are left on their own to make decisions about mediation. How your business uses the tool of mediation can determine whether or not your business achieves the desired goal in the lawsuit.

Mediation is a non-binding form of dispute resolution. This means that the mediator can recommend, but may not enter a binding order on, a compromise of the dispute. The parties must agree upon, and typically pay jointly for, a mediator. In our experience in Missouri, there are mediators of widely varying abilities. We can help guide your business to the best mediator for your case. Our Firm prefers to use a retired judge or a semi-retired trial lawyer to mediate cases we handle. Unless your mediator has substantial trial experience, he or she will be at a disadvantage to explain to the parties how the matter will likely be decided at trial. We have found that it is not much of an advantage to have a mediator with a great deal of experience in your particular industry. Such a person is very likely to be biased towards one of the parties because of their industry-specific experience. Biased mediators are ineffective. It is important to keep in mind that your trial judge and your jury will very likely not have such experience.

In Missouri, mediation takes place on “neutral ground.” Typically, the parties will agree to use the office of the mediator to conduct the mediation. Someone with authority to settle the dispute must be present for your business. Your opponent must also send a representative with settlement authority. If the legal dispute is covered in whole or in part by insurance, then adjusters for both sides will need to be present. The adjusters must come to mediation with authority to offer a sum of money to settle the dispute. Lawyers for both sides will be present throughout the mediation.

Mediation is an important chance for your business to speak directly to the decision maker on the other side of the dispute. If that decision maker is an insurance adjuster, mediation might be your company’s only chance to address the adjuster and to show him or her the strengths of your side of the case. In all other phases of the lawsuit, your opponent’s insurance adjuster typically hears only from the lawyer for your opponent. Mediation gives your business the chance to deliver a much different message to the adjuster.

Given the powerful opportunity to convey a message in this fashion, we are careful to prepare our clients for the mediation well ahead of time. We work with you to decide who from your company should attend. We collaborate with your company to determine the message we want to send at mediation and we devise the most effective means for delivering that message. Many times we will speak for our clients at mediation. Sometimes, however, it is critical to allow our clients to speak up for themselves. We will help you to understand when to speak and when to stay silent so that our presentation has maximum impact.

Mediation begins with an “opening statement.” Either the lawyers or the company representatives will offer a short summary of their position. Many times it is best to fashion an understated opening statement. Mediation is not trial. There is no jury to impress. If we have selected the right mediator, we will let the mediator be the heavy hitter. When the mediator tells our opponent the strengths of your case, that message carries far more weight than the words of a lawyer. It is the lawyer’s job to be an advocate. The mediator is neutral. When the impartial mediator begins to understand and convey the strengths of our position to our opponent then we have a good chance of being successful in the mediation.

We get to work before the mediation starts to make sure that the mediator gets up to speed on the case. We want the mediator to understand how we can leverage the strong points of our position at trial. We also want the mediator to know that we fully understand the weaknesses of our position and that we have devised an effective strategy to deal with any such weaknesses. Most mediators in Missouri will accept a brief prior to the mediation. We always provide one. We reach an agreement with the mediator to ensure that our brief remains confidential. In the brief, we explain the dispute, we outline the applicable law, we discuss the important evidence, and we show the mediator why we will win at trial. If there are personality conflicts that impact the case, we are careful to explain those.

It is our practice to have a conference with the mediator prior to the mediation to make sure the mediator absorbed all of the information contained in the brief. We want to answer any questions the mediator has before the mediation actually begins.

When we complete our opening statement, we are comfortable that the mediator is going to deliver a powerful message on behalf of your company to our opponent. After the opening statements are over, the parties typically go to separate conference rooms. The mediator will first visit with with the party who brought the suit. The mediator will then take a list of demands into the parties who are defending the suit, and those parties get to respond to the list of demands. This becomes a back-and-forth process that can last the rest of the day. Occasionally, mediations take multiple days to complete.

If the mediator helps the parties broker an end to the lawsuit, the parties sign an agreement in principle. The settlement is typically confidential. If the parties remain deadlocked, they can decide if they want the mediator to continue to assist in settlement attempts in an informal fashion as the suit continues.

Even if your business is adamant about not settling the case, we counsel a good-faith attempt at mediation. Even if no settlement is reached, the mediation will be a valuable tool to help us prepare for trial. We will know how our opponent’s adjuster is valuing the case. We will get a preview into our opponent’s positions at trial. We will also get the feedback of a seasoned mediator into how we might polish our message to make it more effective to a jury.

If you have questions about a business lawsuit in Missouri, our Firm can consult with you at no charge to learn about your options. Call Ross & Voytas, LLC at 314-394-0605. The choice of a lawyer is an important decision and should not be based solely upon advertisements.

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