While Americans, and especially citizens of certain states, have a reputation for being a contentious bunch, the reality is that very few civil claims actually get brought to justice. The vast majority of cases – perhaps more than 90% – end in settlement. This certainly applies to my practice and to most lawyers who specialize in litigation.
Although litigation can resolve disputes informally, that is, without the help of a third party, disputes are often resolved through private mediation. See What is the point of mediation? for a detailed introduction to what mediation is (and what not) and how it works. For now, remember that mediation is different from arbitration because the mediator doesn’t decide who is right and what is wrong. Because of this, mediation will not result in a binding decision unless the parties have reached an agreement on the terms of the dispute resolution (i.e. a settlement agreement). This post is about factors to consider when choosing a mediator for your marijuana or hemp dispute.
The main reason for settling cases is economic. Litigation in the 21st century is an expensive business. This is especially true in all document-intensive cases. Our ability to create, share, and store large amounts of electronic communications and documents (emails, texts, tweets, direct messages, etc.) on numerous platforms (Outlook, Facebook, Twitter, Signal, WhatsApp, LinkedIn, etc.) can enable this There is a need to review and create hundreds of thousands of documents. The costs for this are enormous. When litigation is approached from a business perspective, it usually makes sense to attempt to resolve a case rather than going through the risk and cost of litigation.
Usually, the parties must work together to select a mediator who can have a significant impact on whether the mediation will be successful. The term “successful” in this context means to make a settlement agreement, not to win or lose or even like the settlement terms.
Let’s look at three criteria to consider when choosing a mediator:
Costs. That’s easy enough. But don’t make the mistake of assuming that a mediator at $ 300 / hour is not as competent as a mediator at $ 900 / hour. If you are cost sensitive, you should negotiate the length of the mediation statement and its exhibits (the more extensive, the more time the mediator has to spend reading and time is money). You can also consider limiting the preparation time you are willing to pay the mediator. On the other hand, consider the value of a mediator who takes the time to understand the issues in your case and consider the significant litigation costs you will incur if the mediation is unsuccessful. So it makes sense to be wise with the mediation costs, but it also makes sense to put in expenses to try to resolve the case rather than incurring the additional litigation costs if the mediation is unsuccessful.
Experience. Cannabis business disputes are increasingly different from other trade disputes. While finding a mediator with knowledge of the cannabis industry can be helpful, it is in no way required. Often times, the parties can provide the mediator with sufficient cannabis-specific information that would be helpful. Look beyond cannabis and find a mediator with knowledge or experience of the underlying legal issues – e.g. B. Product Liability, Partnership, Company Valuations, Employment, Securities Transactions, Commercial Leases, etc.
Mediators with legal experience are often an excellent option. Former judges may have ruled countless similar cases, may have insight into the court or judge in which your litigation is pending, and are likely to be able to offer a realistic perspective on the reality of a legal proceeding.
Attitude. Mediators have a reputation among lawyers for performing mediation. Some mediators take an in-depth approach to getting the parties to an agreement. Others are known as die-hard individuals who are brutally honest with the parties. Some mediators are less active and require the parties to do the hard work to resolve a dispute. Different cases and parties require different approaches. The point here is not to neglect which approach is best for you.
The answer to which mediator is right for your case, like many answers from attorneys, is, “it depends”. However, if you are seriously trying to resolve your dispute in mediation, you should carefully consider which characteristics of the mediator have the greatest chance of leading to a settlement.