Law Offices of John F. Lang - Judgment, Experience, Dedication

Alternate Dispute Resolution

Courtroom litigation carried to its conclusion is an uncertain win-lose proposition.  The outcome may be determined by the facts, or it may be determined by numerous other, more arbitrary factors, such as:
 
    • The relative skills of the attorneys 
    • The attitude of the judge 
    • The biased testimony of witnesses 
    • The whims of a jury 
 
Protracted litigation settled after years of both sides beating each other up in court is often a lose-lose proposition because a similar outcome might well have been obtained had the parties settled the case in the early stages – and at far less cost to both sides.

Most commercial litigations do not go to trial, but are settled out of court – usually after both sides have spent huge sums for lawyers, experts, discovery proceedings, litigation support professionals, and perhaps accountants and investigators (among others).  The drain on the time of senior executives on both sides is as wasteful as the dollars lost through seemingly endless courtroom wrangling.  Additionally, prolonged commercial litigation may incur negative publicity for both parties.

To businesses embroiled in commercial disputes, our attorneys offer to serve as neutral parties who can work with the disputants to arrive at a mutually acceptable settlement.  As a neutral entity retained to help avoid litigation or to help secure its early settlement, we have no vested interest in either party not settling.  Just the opposite: our interests are in reaching for all parties an effective settlement that addresses all the matters at hand.

Our attorneys’ experience in handling numerous litigations for executives and businesses enables us to evaluate disputes objectively and to assist the parties in coming to an early and fair resolution of the issues.  All parties are free to reject our proposals and/or terminate our services at any time.

The following are some of the ways our attorneys can assist parties in resolving their dispute.  (All procedures described below should include a confidentiality agreement signed by all parties.)

Mediation

In mediation, the parties set aside a day or two to work with our professionals to achieve a settlement of their dispute.  Procedures differ from case to case, but in a typical case the parties will each submit a confidential memorandum to the mediator.  Then, they will meet together with the mediator, and the mediator will also meet separately with each side to develop a mutually satisfactory settlement. 
 
At different points in the process, the mediator may suggest that the parties meet with each other, and/or may engage in “shuttle diplomacy” between the parties.  If the parties are well prepared, try their best to view settlement as a business decision, and are represented by a senior person with settlement authority, the odds of an early and mutually beneficial settlement are greatly enhanced.

Reality Check Case Evaluation

Sometimes, cases do not settle as early as they should because each side believes that there is no question that if the case goes the distance, the party will win.  Sometimes, the clients have been given this advice by their attorneys.  Sometimes, the attorneys have advised otherwise, but the clients don’t believe their attorneys.  One way to break the logjam is for both sides to present their respective cases to one of our case evaluators (an experienced litigator), and receive a neutral evaluation of the strengths and weaknesses of their arguments and evidence. 
 
The case evaluator will not share with one side any information presented to him by the other side.  Nor will either side be told by the evaluator the outcome of his discussion with the other side.  After this process is completed, the sides may continue their negotiations among themselves, or they may ask the case evaluator or some other third party to mediate the dispute.  Having been given a realistic assessment of their respective positions, the chances to reach a fair and satisfactory settlement have been greatly increased.

Short Mock Trial

Where feelings run very strong on one or both sides, there may be little chance of the case ever settling without one or both parties airing their grievances and having their “day in court”—a rather expensive proposition.  A short mock trial early in the process may be the most risk-free, and least costly, method for parties wishing to demonstrate that their adversary has nothing to gain by prolonging the litigation.  While this procedure does involve showing some of a party’s cards to the other side, such discovery pales in comparison to formal discovery in a court proceeding.

Our team will arrange for the parties to have a one- or two-day ‘trial’ with each side having an equal, but limited, time to present its case.  The trial is conducted pursuant to a confidentiality agreement that bars the use of anything relating to the mock trial for any purpose other than the mock trial.  Briefs of a limited number of pages may be submitted before and/or after the trial. 
 
Within 10 days, a nonbinding verdict is handed down by the “mock judge” with an explanation of how he believes a court judge or jury would likely view the case if it were presented as was done in the mock trial.  This experience provides the parties with a first-hand, expert assessment of the likely outcome of further litigation.  They are now in a position to negotiate a reasonable settlement that reflects the realities of the case. 

Client Settlement Assistance

It may be that a party wants to settle a dispute, but needs help in doing so.  Things may have reached a point where the parties are not talking to each other, and/or the attorneys are at each other’s throats.  Settlement efforts may be stymied by obstacles that are not immediately evident, such as:

    • Not enabling an adverse party to save face
    • Failing to structure a settlement offer from a tax perspective
    • Not permitting an adversary to avoid a damaging precedent
    • Not giving due consideration to corporate disclosure obligations which may be hindering 
      good faith settlement efforts 

Each case is unique.  With decades of experience in negotiating settlements on behalf of parties, our professionals are particularly well suited to assist in obtaining a desired settlement.  In such cases, our attorneys' duty runs solely to the party that has retained us.  We bring to the table a fresh approach and an instinct for identifying any unseen barriers between a settlement offer and its acceptance.

Arbitration

Although quicker and less costly than trials, arbitrations can still be long and expensive affairs.  Some arbitral forums permit deposition and document discovery (sometimes based upon prior agreement of the parties), much as would occur in a full-blown commercial litigation.  At the end of the arbitration, a binding and enforceable arbitration award is made. 

In appropriate cases, one of our attorneys may recommend that the parties consider submitting the case to arbitration – especially if they can agree upon a neutral third party that both sides believe would render a fair decision.  However, our focus is on aiding parties through less costly alternative dispute resolution measures. 

Litigation Avoidance

For most businesses, the only thing better than winning a lawsuit or obtaining an acceptable settlement is to avoid a lawsuit altogether.  The same holds true for government investigations.  While it is wonderful to be found not guilty at the end of the road, or even to have settled the case with the government on terms that permit the defendant to stay in business, it is far better never to have had the expense, distraction, and damage to reputation that litigation can bring.

Our attorneys will work with your organization to assess its vulnerability to civil and criminal litigation or regulatory proceedings.  We will help you develop policies and procedures to minimize such exposure and cost.  While it is impossible to render an organization completely bulletproof, it is often possible to materially reduce the risk.  In such engagements, we work closely with the organization’s own personnel.  Our methodology is straightforward:

    1) Develop a threat profile for the organization based on its litigation and regulatory history 
        and potential future vulnerabilities.
    2) Analyze existing litigation risk management practices and procedures.
    3) Recommend new and improved practices and procedures.

Our team brings to such “litigation and regulatory audits” decades of experience from all sides of the table, whether as counsel for plaintiffs, defendants, prosecution, or defense. 
Sometimes, a solution may require:  
 
    • Improving training
    • Strengthening internal controls
    • Enhancing management’s understanding of applicable regulations
 
On other occasions, it may mean assisting management to ensure that the corporate culture that it believes it has created does, in fact, prevail at all corporate levels.



Law Offices of John F. Lang, PLLC

One Grand Central Place
60 East 42nd Street
Suite 4700
New York, NY 10165

Telephone: (212) 300-0646
Facsimile: (212) 300-0648


Free initial consultation.

Challenges welcome.
 

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