by Patricia Roma

1. Do not try to resolve your disputes without first talking to a lawyer.

Since the dollar is more precious than ever, extra cash to spend on legal fees may not be readily available. However, a few hundred dollars paid to consult a lawyer simply to find out your rights may ultimately save you several thousands, if not hundreds of thousands of dollars. If you try to negotiate without knowing what the law is or how a judge is likely to rule and find out later that you have sold yourself short — which is often the case — it will be extremely difficult to recoup your losses. If you try to assert your newly found rights, you will no longer have credibility with the opposing party; the trust you once had with the other party to negotiate your dispute in good faith will be forever gone. Subsequent attempts to negotiate with the opposing party will be difficult, if not impossible,  once this trust has been destroyed.

2. If you do retain a lawyer, choose one experienced in alternative dispute resolution.

ADR is a less costly alternative to litigating your matter in court. There are many forms of alternative dispute resolution; nearly all types tend to facilitate communication and reduce any animosity that may exist between the parties, all of which helps promote a settlement.

Among the more common types  of alternative dispute resolution are mediation, arbitration and collaborative law. These three forms of ADR can be used with any type of dispute. This would include issues arising in a divorce case (such as child custody, division of property, and child and spousal support), breach of contract, property line disputes, failure to disclose in a real estate or other transaction, and landlord/tenant disputes. The parties involved in a dispute may choose one or another form of alternative dispute resolution at the very beginning of the resolution process, after a case has already commenced,  or even after it is partially litigated.

Probably the most utilized form of alternative dispute resolution is mediation. Once the parties agree to mediate their dispute, the next step is to agree upon a mediator, and if they cannot agree, they can request that the court appoint one. The mediator does not represent either party; rather, the function of the mediator is to facilitate an agreement between the parties on as many issues as possible.

If the parties are represented by attorneys, the attorneys may appear at the mediation sessions with their clients; alternatively, the parties may consult with their attorneys before each mediation session. That way, the attorneys can advise their clients not only regarding what rights they have, but also regarding how best to negotiate for what they are entitled to receive or may otherwise want. Sometimes, the parties to a dispute do not retain attorneys of record, but instead elect to retain the services of attorneys to act as what are commonly referred to as “consulting attorneys,” lawyers with whom they confer before each mediation session.

Because mediators, especially those specializing in certain areas of the law, charge a fee to act as a mediator, initially it might appear that paying both an attorney and a mediator would be very costly. However, most of the time the parties incur far less expense than they would incur to litigate the matter.

Patricia Roma brings 35 years of experience to her Half Moon Bay-based law practice, which includes litigation, mediation and collaborative law. She can be reached at 650-726-5575.