Dan
Welcome to sound business insights. I’m Dan Watkins.

Neil
This episode is part two of our podcast, resolving business disputes.

Dan
This podcast is not intended to provide legal advice.

Neil
Dan, some people perceive they have a lot of control during negotiations, but have to give up some of that control in mediation. Is that accurate?

Dan
It seems like that would be true, but it’s not. When you have two people in the beginning, without lawyers talking to each other, either they’re going to solve it or they’re not. And if not personalities control, then when you have lawyers representing them, you get a better chance of settling. We’re all paying some good money to have someone who’s intelligent and well educated to solve our problems. But those lawyers’ personalities are going to mirror their client’s personalities a little bit, kind like a politician, not total control. Now you bring in former superior court, judge Jones, and he’s looking at us, the lawyers, and he knows BS when he sees it. And we don’t want him to think that we’re full of BS, just cuz our clients want us to fight hard. So he’s going to have some control in controlling the lawyers from over-valuing this dispute and from over-posturing, just being aggressive for this sake of impressing our clients.

Dan
And he’s going to go back and forth and have the purpose of settlement on his mind, which is what we both want. And a lot of times here’s the thing why don’t settle. I’d say 50% of our cases don’t settle at mediation, but after a good mediation a month or two later, it’ll settle because of the mediation. Some mediators actually call us a month after when we came so close and say, Dan, what can I do? Do you want me to call the other side? I said, yeah, good idea. Call the other side. And then he’ll call the other side. And they’ll their clients have calmed down. They’re relaxed and we’ll settle. We have to get to that 95% somehow. So there’s a lot of different ways using the ADR formula with the court has alternative dispute resolution systems, using them to your benefit. Understanding them gives you the best result in 95% of the cases, which is how they resolve.

Neil
And those that don’t resolve go to arbitration or trial. What’s the difference between the two

Dan
Arbitration is when you have an agreement in your contract that says, I’m going to resolve this by arbitration and it’s usually quicker and cheaper, but you waive the right to a jury trial and the arbitrator himself can be very expensive. But in the long run, waiting to go to trial for two and a half years and waiting for a judge who has an overburdened docket can be just as risky. So arbitrations are great. They cut to the chase and you really don’t have a lot of time for dramatics. You have to have accurate law and facts when you go in and it’s usually decided by your arbitration brief because the judge knows when he sees a case that has no merit or has great merit.

Neil
So it keeps a lot of the extraneous legal stuff out of the way and focuses the matter to a head

Dan
True. And generally it keeps crazy verdicts from happening because if you win, you’re going to get something reasonable. And if you lose, it’s going to be something reasonable. Their goal is to try to be reasonable. They’ve seen crazy jury verdicts their whole life from time to time. And so, and they know the law on the facts. So normally I would expect, you know, a very reasonable sound fair resolution when I go to an arbitrator,

Neil
But you can’t appeal the decision of the arbitrator. If you don’t like it,

Dan
No you can under extreme circumstances. But I would just like to say, no, you cannot. Don’t try. You knew you’re getting into when you went in, this is it.

Neil
The arbitrator makes a decision. The decision is final. There’s no appeal. And unlike a trial, it’s just over

Dan
Maybe one time in 35 years, we’ve had a situation where we had a specially selected arbitrator with, you know, questionable, uh, credentials in a contract where we had to fight it. But for the most part, when you go under that arbitrator, you should know they’re experienced and they have to make tough decisions. And sometimes they hurt you.

Neil
Ultimately Dan, from the outset, we prepare every case as if it’s going to trial. And sometimes that’s the best venue for our clients to achieve their goals.

Dan
Well, because we start with this chronology and all of our philosophies on how to prepare a case, we’re ready to go to trial. And we’ve tried lots of cases. If it’s a trial, we really enjoy jury trials. If it’s a, uh, arbitration, we’ve been around so long, we’re comfortable with the arbitrators. They don’t always rule in our favor. just because you’ve had arbitrations in front of a judge or an arbitrator doesn’t mean you’re going to get a good ruling. Sometimes it’s the contrary. If they, if they know you, they’re going to put you to a higher level and a higher standard, which is okay. And then jury trials, we’ve tried so many jury trials that we really feel comfortable picking a jury going through the jury selection process. Our whole team knows how to get all the exhibits ready, comply with all the court, local rules, having everything professional and laid out, having your, uh, expert witnesses, ready to go. You put on a show, we enjoy doing it. We don’t think we should have to do it that much. We should. We’d rather settle. But when we go to trial, we like getting that big jury verdict. It’s just wonderful.

Neil
Dan, after almost 40 years of trial verdicts, doesn’t that proven track record give you more power, more strength in the initial stages of these cases.

Dan
I wouldn’t say more power strength. I think we get, we have a good reputation here and we have excellent litigators here. We have older lawyers here and who have got a good track record. We have a war stories page. That’ll let any opposing council know if you want to go to trial with us, we’re fine with it. We’ve been there before and done that. And we’ve had some pretty amazing, you know, defense, verdicts and plaintiff verdicts. But yeah, I wouldn’t say it gives us an advantage, but it definitely doesn’t hurt, you know, facing off against opposing council. When they know if they wanna spend a year and a half, two and a half years going to court. When we go to trial, we got a good chance we’re going to win. And if you’re on a contingency, you may just have spent an entire two and a half years for nothing.

Neil
We’re going to be ready!

Dan
And some of our clients request we go to trial, even though it be cheaper, not to go, they say, no, it’s a matter of principle and we try to talk them out of it. But if they’re steadfast on going to trial, we’re looking forward to it.

Neil
Thanks Dan.

Dan
Sure!

Dan
You can learn more about the Watkin watkins.com or call our office (858) 535-1511.