Mediation of Complex Litigation

Posted on February 3, 2014
by Kim J. Trout

Elite collaboration with extraordinary, talented and dedicated professionals is to be relished like the finest foods. After many years participating in mediations and working as a Mediator, as part of my Continuing Legal Education accreditation, attending Pepperdine Law’s ‘Straus Institute’ has been just this type of rare delight.

Complex litigation carries a unique mix of issues, interests, emotion and law all mixed into the cauldron known as the lawsuit. Each side’s lawyer carries the sword for their sophisticated clients and prepares for the courtroom battle. The clients bear the burden of cost, time, and angst that can be a complete distraction for them and their business as the litigation process drags on, and extracts its toll on resources and human capital. The right to take our grievances to Court is clearly fundamental in society’s precepts of justice. The looming question becomes, Is there a better way?

 

Placing the ultimate fate of your business in the hands of a Judge or Jury, neither of whom will ever know the details of your claims, your interests, and what’s really of importance to you carries significant risk. This litigious path also may deprive you of one of your most prized possessions: Your good judgment!

 

What to do? Alternative dispute resolution has emerged as a viable and often preferred method of settlement.

 

Mediation offers many advantages to disputing parties, whether already in litigation or simply in an intractable dispute which may result in litigation. These advantages include time, litigation fees, and much of the resulting distraction cost surrounding lawsuits. However, an enhanced advantage is the opportunity for parties to exercise the opportunity to find a best course for solving the problem.

 

The often overlooked fact is that, in general, no one makes better decisions about the their business than those directly responsible for the day-to-day management success of that business. Thus, it seems eminently wise for the principal decision makers to resolve the dispute. However, as is often learned, the reality is that disputes often result from, or lead to a breakdown in open, honest communication between the disputing parties.

 

At Straus, an initial and continuing emphatic theme is the role of the Mediator as the facilitator of inter-party communication. Utilizing a variety of communication tools, and in line with my years of experience, the Straus methodology strives to significantly broaden the depth of understanding and utilization of these communication skills. Finding strategies to initiate, encourage, and facilitate open communication toward the goal of claim resolution is both art and science.

 

The Straus Institute training has been an invaluable addition to my previous dispute resolution experiences[1]. In addition to an early term of mediating construction and commercial law cases, I have participated in hundreds of mediated cases as a litigator. The opportunity to now combine more than 30 years of litigation experience coupled with solidification of those tools has provided a fresh, and unique insight into the problems, the process, and the enhanced viability of resolving complex litigation through Mediation.

 

I look forward to writing more, and expanding an active practice in alternative dispute resolution services.

 

Kim J. Trout

 

 

 



[1] I previously completed training at the Northwest Institute of Dispute Resolution and obtained certification as a Mediator in both Idaho Federal Court, and Idaho State Court.


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