Each month we pose a question to the diverse and experienced panel of Alterity ADR neutrals and share their wisdom, thoughts, and opinions on dispute resolution.

In October, as 2022 heads into the home stretch, we asked this:

With the fourth quarter upon us, some parties feel a sense of urgency to resolve disputes before year-end. How does that affect ADR proceedings, and what advice do you have for those looking for expeditious resolution?

Vincent Cino, an arbitrator and mediator, says the holiday season “has always worked wonders moving parties to more reasonable positions.”

“It is well known in the profession that the fourth quarter provides a wonderful opportunity to resolve a matter. Those troublesome cases where settlement has not been broached may get resolved for a variety of reasons. The carrier has an incentive to remove this open case from their books. The Plaintiff may need money at year-end. The principle that precluded resolution has slowly melted due to the passage of time and/or mounting legal fees as well as the very real potential of losing your case. Suddenly, ADR emerges as a viable alternative to spending more time, energy and dollars on your case.

“There is also the inevitable satisfied feeling that the case is finally concluded and life can go on. Never underestimate the emotional and monetary toll any litigation has on both parties.”

Stanley Santire, an international arbitrator and mediator, cautions against rushed proceedings as the year comes to a close.

“The good of such a situation is that it means an increase of business – and for a mediator mediation is a business. On the other hand, we have an ethical obligation to make the process work effectively. 

“Like anything rushed, sometimes preparations suffer. As a mediator, one of the biggest challenges we face are parties coming to the mediation without sufficient preparation, particularly in discovery. When this happens, the mediation becomes more of a discovery process than a true negotiation. As a consequence, we must be particularly energetic in determining that the lawyers confirm that they and their clients are prepared to negotiate and sincerely seek resolution.”

Kelly Overstreet Johnson, an arbitrator and mediator, says timing can be critically important when deciding how to proceed.

“I always encourage those participating in mediations to think strategically. Should you mediate pre-suit or early in litigation, or is discovery needed to have a meaningful mediation? Take advantage of year end opportunities – often companies will have a reason to clear their books or claimants have a need for cash at year end or for the holidays.”

Nigel Wright, an international arbitrator and mediator, says time spent on finding the right neutral is critical, even if the clock is ticking toward midnight.

“One of the biggest issues facing parties trying to resolve a case towards the end of the year is the availability of suitable mediators when preferred mediators are already booked up, and the suggested dates just don`t work for the parties involved. 

“For those looking to resolve their cases – try finding an available mediator with the requisite experience to help you resolve your case, irrespective of whether you have mediated with them before. As a minimum, it will give you an alternative and may prove to be the change of perspective that you and your client(s) need.”

Paul Gupta, an arbitrator and mediator, says there is a growing interest in achieving year-end resolution of disputes, especially because of the need to catch up on economic progress after COVID-19 and other disruptions. 

“ADR provides at least two options: First, mediation can be started at any time by the agreement of the parties in dispute; short timelines can be established for submission of background materials, a one-day mediation session can be held promptly, and final resolution can be expedited if the parties agree that the neutral can submit a mediator’s proposal. Second, litigation can be converted into short-fuse arbitration, which is typically conducted with a single arbitrator who has the skill set suited to the nature of the dispute; often, arbitrators with relevant experience can reach the most timely (and cost-effective) resolution, especially for disputes involving technology or other specialized issues.”

And Jeff Kravitz, an arbitrator and mediator, says this:

“Each contestant should be asking themselves: ‘Will this lawsuit/controversy look any better after the first of the year?’ 

“Unlikely. Resolve it now.”