By: Roger J. Buffington
Buffington Law Firm’s Orange County Breach of Contract attorneys handle cases involving actual or alleged breach of contract using a variety of different approaches. Generally, in a breach of contract lawsuit the best approach to achieving resolution is to calmly but aggressively prepare for trial. This means that the litigation attorneys will conduct discovery, gather evidence, and prepare the case evidence for a jury or court trial. At the same time, it is usually advisable to keep an open mind regarding settlement of the case. It has been the Firm’s experience that if there is to be any out of court settlement of the matter, the opposing side has to know that we are prepared to try the case in court when necessary. Faced with the certainty of trial unless they settle the case, this often motivates the opposing side to consider settlement as an alternative to trial. Of course, if negotiations and other attempts at reaching an out-of-court settlement are not successful, it is vital that the attorney has properly prepared the case for trial.
Settlement often has many advantages. It can greatly decrease legal costs, and it can allow the parties to reach a mutual agreement that preserves at least some of the litigation objectives of both sides. Every lawyer knows that settlement eliminates the riskiness of a trial outcome, which outcome is never guaranteed in even a very meritorious case. Settlement by definition eliminates this risk since the parties themselves craft the agreement.
Breach of contract cases often differ from many other types of lawsuit in one important respect: usually in breach of contract disputes there is, in fact, a written contract that purportedly formed the basis for the contractual agreement that the parties are disputing. While many other types of lawsuits often depend mainly upon witness testimony or other forms of subjective, circumstantial evidence, when there is a written contract that states the agreement between the parties, this often or usually has a tendency to frame the dispute and add at least some clarity to it. This often makes early resolution of the dispute feasible through negotiation or mediation.
Private mediation is essentially a forum for negotiation. Usually, the parties agree to have a private mediator, often a retired judge, conduct the mediation. Mediations typically range from 4 hours to a full day; sometimes even longer. The mediator reads the parties’ mediation briefs, discusses their arguments with each side’s attorneys, and often also with the parties themselves. The mediator has no power to force anyone to agree to anything; his or her goal is to facilitate negotiations between the sides that lead to a settlement. For the attorneys, negotiating at mediation is a distinct skill. Mediation is a form of litigation all its own, and a skilled breach of contract attorney who also has experience in mediation forums can use this format to his or her client’s advantage. Never forget that the mediator is neutral, and the mediator’s objective is to settle the case; the mediator is not primarily interested in getting one side a “good deal.” Doing that is the attorney’s job which is why it is important to have a skilled mediation breach of contract attorney represent you at mediation.
Pros of Mediation. Mediation has many advantages. Firstly, certainty and finality. The parties reach an agreement, thus unlike trial there is no risk of appeal. Also unlike trial, collection is usually assured. If a settlement is reached there is usually little or no risk of collection difficulties as there might be in a trial. After trial, sometimes it is difficult to collect on a judgment. Mediation is private. Trial is public and often unpleasant. By contrast, mediation does not involve calling witnesses or disturbing third parties such as customers or vendors, who rarely appreciate being dragged into lawsuits as witnesses. And of course, mediation puts an end to legal fees and expense. A case that settles by mediation usually involves lower legal fees and costs than if the case goes to trial. In most cases a mediation will allow both sides to control the risk and reach a settlement that preserves at least some of the parties’ litigation objectives.
Cons of Mediation. Firstly, mediation is not cheap. A typical mediator charges around $9,000 per day, split two or more ways. Plus the attorneys are going to charge for preparing for and attending the mediation. The mediation will take a day of the parties’ own time. A mediation is a financial investment and not a trivial one. Secondly, mediation is a financial risk. Not all mediations result in a settlement agreement. Sometimes the parties spend the money, pay the lawyers, engage in a mediation, and there is no settlement at the end of the process. So mediating involves the risk that the parties will spend the money and not conclude the case. Lastly, by its nature settlement involves compromise. By mediating to settlement, a party does not “go for broke” and instead compromises their claim or their defense. Sometimes it makes sense to settle a case even if a party is confident that he or she will prevail at trial.
Buffington Law Firm’s breach of contract attorneys have settled many difficult cases in mediation. If you are involved in a business or breach of contract dispute, we invite you to contact us for a free legal consultation. All consultations are with an experienced breach of contract commercial litigator and are completely confidential and protected by the attorney-client privilege. And there is never any obligation.