Conciliation: The Way to a Better Result

Conciliation is the facilitation by a "neutral" of a dialogue between parties prior to the negotiation of the ultimate issue in conflict. Conciliation during discovery provides a more reasonable approach to pretrial litigation than traditional adversarial methods.

At the early stages of most disputes, before litigation or soon after suit has been filed, parties may not believe they know enough to assess the case for final resolution. What they do have is a need for more information, an efficient way of obtaining it and an orderly way of conducting themselves during the process. Conciliation offers a way for agreeing upon the means and methods of exchanging information which will reduce the cost, delay and frustration often attendant to discovery practices.

The applications of conciliation in the pretrial process are limitless. For example, reasonable agreement as to the means and methods of conducting discovery can produce a better plan for all parties than one prescribed by the court. Although the outside parameters of discovery and scheduling are set by the court, judges usually welcome and approve reasonable discovery plans and orders presented by agreement of the parties. If disputes arise during discovery, the option of resolving them with the aid of a conciliator is often superior to presenting them to the court after confrontation, motions, briefing, argument and delay.

Almost every business and commercial dispute now involves the production of electronically stored information. The direct costs of ESI production can be staggering. The collateral costs of disrupting an ongoing business can be overwhelming. In most cases it is advantageous to all parties to present the court with a detailed agreement for this type of discovery. Federal rules require the parties to meet and discuss their ESI production. Involving a neutral in the process can make developing a plan markedly more efficient and valuable.

Even prior to filing suit, in some cases parties can benefit tremendously from agreements for the exchange of information to permit the discussion of resolution of the case without litigation. The many benefits of this approach in savings of time, cost and other value are obvious although often overlooked.

Agreements by which the parties exchange information and conduct themselves not only reduce all of the costs of an adversarial approach but they lay the foundation for a later resolution of the ultimate dispute between the parties. Fitzgerald Dispute Resolution is here to assist you in creating the optimal solution.

Joseph Moakley Courthouse, Photo © Stanley Rowin








The material contained on this website is provided for informational purposes and does not constitute and should not be construed as professional or legal advice. Fitzgerald Dispute Resolution LLC provides mediation and conciliation services and does not provide legal representation or advocacy. Legal counsel or other professional advice should be sought if expert assistance is required.