JAMS ADR Insights
Selecting a Neutral at Case Inception
Published June 30, 2016
Every attorney who works as a litigator knows that litigation is a stressful and often frustrating exercise. Experienced litigators strive to provide the best representation for their clients while attempting to find ways to work cooperatively and cordially with opposing counsel. However, despite the efforts of well-meaning attorneys, it is the rare case where time-consuming disagreements do not interfere with the process.
Simply stated, I suggest that the parties select a professional “neutral” at the case inception to be available to resolve issues that present roadblocks to the cooperative and efficient progression of litigation. This approach addresses what I would call low-grade to moderate litigation-related disagreements, which I believe would save time and money—and lower litigation stress—for attorneys and their clients.
An early-selected neutral, with the agreement of both sides, could easily resolve issues such as (1) the order of taking depositions, (2) disputes over deposition locations, and (3) minor to moderate discovery disputes without the necessity of bringing motions and briefing issues that are easily handled in a telephonic conference, etc. By selecting a neutral at the commencement of the litigation, the neutral will become familiar with the basic legal issues and facts, thus enabling him or her to provide swift, efficient and cost-effective assistance to the attorneys.
Using this method, the parties can either agree that the neutral will only act as a “facilitator,” who attempts to get the parties to resolve their dispute by suggesting solutions to both sides. Or, if they wish, the parties can designate the neutral as the “decision-maker” for issues that they mutually agree should be presented to their neutral. The underlying concept is to create a method by which the parties can swiftly and cooperatively resolve the issues that normally arise in litigation.
By agreeing to this method, neither side makes any concessions. The selection of a neutral for this process does not represent a commitment to attempt to resolve the case at a later date. It simply represents an acknowledgement that both sides share equally in benefiting from finding the smoothest path to moving the case forward – whether to trial or settlement.
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