When you are trying to settle a lawsuit, don’t lose sight of the elephant in the room.

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Its not easy to find or part with the money often needed to settle a lawsuit.   You might think that your toughest negotiations will be with the opposing party.  However, there is often an even larger stakeholder in the dispute; someone on your own side; someone who will likely have to be paid first from whatever proceeds are generated upon resolution of the lawsuit; someone who you might have already agreed to pay more than you could ever reasonably expect to recover in court.

The American rule of damages

If you are not careful, the biggest damage and expense that you will incur will be your attorney fees.  In the United States, the average cost (bill) to try a civil lawsuit is between $43,000 and $122,000.  Why does it cost so much, because everything in court is a fight. 

In the United States, each party to a lawsuit is responsible for paying their own attorney’s fees, unless there is a specific statute or contract that allows the assessment of those fees against the other party.  In other words, when it comes to litigation, everyone is usually left to pay their own legal bill.  

How to Secure Your Right to Seek Recovery of Your Attorney Fees

The rights and remedies available in many civil cases originate and flow from whatever contract / agreement was reached between the parties.   In the United States, we all have the freedom to choose with whom to contract, whether to contract or not, and on which terms to contract.  Sometimes people choose to make agreements based solely on a handshake, sometimes there are just phone calls, emails or just text messages.  None of this will likely be enough to establish liability and protect your legal right to recover damages in court should a dispute later arise.  If you want to make sure you will have a right to seek recovery of your attorney fees in the event of a lawsuit, you better make sure to discuss it with the other parties upfront and include it in a written agreement signed by all parties.

 

Mediation provides for the safe and secure use of confidential information to resolve lawsuits and disputes.

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I doubt whether anyone has a legal right to keep their garbage confidential. However, there are a couple of real legal rights of confidentiality that you should know about any time you face a legal dispute.   If you hire an attorney, your conversations with your attorney are confidential.  That’s called the attorney-client privilege.   Did you know that there is another legal right of confidentiality that will keep a lot more communications confidential than just those you have with your own attorney?

In mediation, you have the legal right to speak confidentially with not only your own attorney but also with the opposing parties and their attorneys.

The attorney-client privilege only causes people to do one thing, invest more time and more money pursuing litigation.  However, litigation rarely resolves anything and you won’t get very far along to resolve things out of court if you are only willing and able to speak with your own attorney.   You need to speak with the other parties to figure out what they are thinking and how they might propose to resolve the situation.  To do this you need some assurances and protection.  Everyone needs to be assured that whatever they say will not be used against them later.   Mediation and the mediation privilege does exactly that.  Its the legal right and obligation to keep all communications between everyone who attends a mediation conference confidential.

An ounce of trust placed in a good mediator is often worth more than a ton of litigation.

People are used to trusting their own attorneys and relying on them to get the information they want and need to decide how and when to resolve a lawsuit. However, your attorney can rarely get from the other side, the full story, not without a long, expensive discovery fight in court.   There is an easier way to get the facts and figures you need to try to decide how to settle a lawsuit. Imagine all the parties to the lawsuit assembled in a safe room.  Imagine a process unfolding in that safe room run by a neutral third party with no prior history or stake in the dispute.   Imagine placing your trust in this person knowing that they are legally required to keep everything you tell them confidential.   Imagine that this person could be trained to ask questions and speak privately with everyone to hear all sides of the case; the strengths, weaknesses, interests, priorities and fears of all parties.  Imagine that once this trustworthy neutral person acquires confidential information from both sides that they can use this “crystal ball” of knowledge to help both sides negotiate to get more of what they really want to settle the lawsuit out of court.  Just imagine…….better yet just mediate.