During a negotiation, it would be wise not to take anything personally. If you leave personalities out of it, you will be able to see opportunities more objectively. Brian Koslow
Negotiation is the first step in resolving legal matters. It involves a dialog between parties who are trying to reach agreement or resolve a dispute.
Effective negotiation requires:
- a desire to agree rather than disagree
- credible disclosure of relevant facts
- logical interpretation of information.
The point of negotiating is compromise. To succeed you must know what you want while remaining willing to discover what a win looks like to the other side. This means that you need to look out for yourself, but also be willing to budge in order to satisfy both parties.
Negotiation can take many forms. It is often a good idea to have someone present your position during a negotiation.
Mediation is one way of resolving disputes either short of or during the process of litigation. During mediation a neutral third party, the mediator, assists both sides in reaching a settlement. Mediation may take several different forms but one aspect is common; any settlement reached is by mutual agreement.
The term “mediation” refers to any situation in which a third party listens to arguments from each side and attempts to help craft an agreement between the parties. This form of dispute resolution has a structure, timetable and dynamics that “ordinary” negotiation lacks. The process is private and confidential. Participation is typically voluntary. Success in mediation will depend upon the parties’ willingness to resolve their concerns and the skill of the mediator in addressing those concerns.
Benefits of mediation include:
• Cost—While a mediator will charge a fee comparable to or greater then your attorney, the mediation process takes less time than litigation. While a trial may take up to a year or more to be scheduled, and take days or weeks to complete, mediation is cheduled at the convenience of the parties, and usually achieves a resolution in a matter of hours. Taking less time means spending less money.
• Confidentiality—Court hearings are public. Mediation is confidential.
• Control— At trial, a decision is made by a judge or jury. In mediation, the decision is made by mutual agreement of the parties.
• Satisfaction—Mediators are trained in working with difficult situations. The mediator acts as a neutral facilitator and guides the parties through the process. The mediator helps the parties think “outside of the box” for possible solutions, broadening the range of possible solutions and increasing the possibility of reaching a satisfying result.
Arbitration is another way of resolving disputes without a trial in court. In arbitration, both sides make an argument as to the merits of their case and a panel of one or more neutral third parties (usually 1 or 3) decides the outcome. That decision may be binding or non-binding. As with mediation, the process is private. Arbitration differs from mediation in that the decision of the arbitrator does not require that the parties agree with the result.
In some cases, arbitration is required before the parties may have a court trial but, in most cases, the parties have previously agreed to arbitrate their dispute. Many real estate listing agreements and other form agreements require arbitration. The agreement may require a particular form of arbitration, but if not, Oregon law provides a procedure for the arbitration.When an arbitrator’s decision is non-binding, the parties may reject the decision, go to court and litigate their dispute. In that case, the court will hear all the evidence and decide the dispute without benefit of the arbitrator’s opinion. In binding arbitration there is no appeal, either party may enforce the arbitrator’s decision in court. In that case, a judge will not reconsider the decision.
Litigation is the process of resolving disputes publicly in court. This form of dispute resolution tends to be more expensive, complicated and time consuming than mediation or arbitration. Although litigated cases are ofte completed within one year they may take longer. The decision maker will be either a judge or a jury. Regardless as to who decides the case, litigation has several distinct steps: pleadings, discovery, trial, and then possibly an appeal. The parties may stop this process by reaching a settlement. Most cases settle before reaching trial.
Each party in a lawsuit files legal documents, known as “pleadings” that explain each party’s side of the dispute.
- The first pleading is a “Complaint” filed by plaintiff in court and then served on the defendant. The complaint describes how the defendant caused harm to the plaintiff and the legal theory for holding the defendant responsible.
- The defendant then files an “Answer” to the complaint. The answer provides the defendant’s side of the dispute. The defendant may also include counter-claims against the plaintiff with the answer.
- If either party objects to the legal theories set forth in the pleadings, either the plaintiff or the defendant may file motions asking a judge to strike or improve the pleadings of the other side.
Discovery is the process through which the parties discover the facts that support their cases. Discovery begins soon after a lawsuit is filed and may not stop until shortly before trial.
During discovery the parties may:
- Take depositions
- Require the other side to produce relevant documents
- Require the other side to admit important facts.
- Require the other side to relvant undergo physical or mental examinations.
- Inspect real or personal property owned by the other side.
After discovery is complete, either party may file a motion for summary judgment.
This form of motion will be granted if the judge believes there is no legitimate issue of fact and that the moving party is entitled to prevail.
- The parties will make opening statements to explain their case and then present evidence.
- The plaintiff presents evidence first, then the defendant. The plaintiff may then present rebuttal evidence.
- After the evidence is presented, the parties give closing arguments
- The court instructs the jury on the law to be applied to the evidence.
- The jury then deliberates and reaches a decision.
A party dissatisfied with the trial result may appeal to the Court of Appeals.
- An appeal asks the court to review the trial court rulings.
- The parties present arguments to the court in briefs and then by oral argument.
- The appellate court can reverse the trial court and either correct the decision or order a new trial.
An appeal will extend the litigation process by a year or more.