Early Neutral Evaluation

In business, disputes will happen. It’s inevitable. Many can be resolved with open communications and common sense. However, it is not unusual for disputes to trigger very serious conflicts costing each side of such disputes significant loss of time, money, reputation and relationships. Generally, the sooner business disputes are resolved, the better for those involved.

However, rapid dispute resolution is often difficult to achieve because one or both parties truly believe their side of the disagreement to be the correct one. The disputants may overestimate the weight of evidence in their favor and underestimate the weight of evidence in favor of their opponent. Their emotions may cloud their judgment or willingness to reasonably consider resolution or the risk of not resolving their disputes. Alternatively, each side may simply be unaware of the full facts related to the dispute, or how others might perceive those facts. Further, even when the full facts are known, dispute resolution, short of third party intervention (for example, mediation, court trial or arbitration), may still be elusive.

Sometimes, the parties to the dispute could be best served by seeking the informed opinion of a neutral who can evaluate the claims, evidence, and positions of the parties, as well as the relevant law and provide insight as to the possible, or probable outcomes if the parties do not settle their dispute. Such opinion would be non-binding (although the parties could accept the opinion as the basis for a settlement of their dispute) and, depending on the jurisdiction of the dispute, fully confidential if sought in aid and as part of a settlement process.

If only one side to the dispute were interested in obtaining a neutral opinion, (perhaps to better inform that party’s settlement negotiations and, failing settlement, the presentation of that party’s case at arbitration or court trial), such opinion could ethically be obtained by the requesting party’s legal representative retaining the neutral, even without the knowledge or consent of the other party, as a type of confidential attorney-work product.

Generally, the sooner a neutral is engaged, the more likely a dispute can be resolved on reasonable terms. If we may be of service, please email JudgeSmith@CommercialADR.com (please, no confidential information by email), or telephone, +1 (253) 649.5909.

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