Structured negotiation and mediation aimed at resolving business disputes before litigation becomes necessary.
Resolution before the positions harden
Once a lawsuit is filed, positions tend to become more entrenched and costs rise quickly. Pre-litigation resolution is a structured effort (through direct negotiation, exchange of information and often mediation) to resolve the dispute while a cooperative outcome is still realistic.
The pre-litigation process
- 1
Assessment
Review the facts, the governing agreement and the realistic range of outcomes before any communication is sent to the other side.
- 2
Position statement
Communicate the client's position clearly, often through a demand letter, to invite a substantive response.
- 3
Negotiation
Exchange proposals directly or through counsel, focused on terms both sides can accept.
- 4
Mediation, where useful
Engage a neutral mediator to help bridge remaining gaps, particularly where direct negotiation has stalled.
- 5
Documentation
Memorialize any resolution in a settlement agreement or other binding document.
Mediation as a tool, not a formality
Mediation allows both sides to test settlement positions with the help of a neutral facilitator, often producing terms that a court could not order and that both sides find more workable than continued conflict. It can be pursued voluntarily or, in some matters, may be required before litigation proceeds.
If pre-litigation efforts do not resolve the matter
Not every dispute settles before litigation, and pursuing resolution first does not waive a party's rights if the effort is unsuccessful. Where litigation becomes necessary, the firm refers the matter to trial counsel and remains available to support the client on the underlying business and contractual issues.
Answers
Frequently asked questions
- Is mediation required before I can file a lawsuit in Florida?
- It depends on the type of claim and any contractual mediation clause; some contracts require mediation as a condition before litigation, and certain court processes involve mediation once a case is filed. The applicable requirement depends on the specific matter.
- How is pre-litigation resolution different from simply exchanging demand letters?
- It is broader: it can include an initial demand, direct negotiation, information exchange and mediation, coordinated as a deliberate process rather than a single letter.
- Does trying to negotiate first hurt my position if I end up needing to sue?
- Generally no, provided applicable deadlines are respected. A documented, good-faith negotiation history is often viewed favorably and does not itself waive legal rights.
- What if the other party refuses to engage in negotiation or mediation?
- A refusal to engage is documented and factored into the client's next decision, which may include referral to trial counsel if litigation is the remaining realistic option.
- Will this firm represent me if the matter ends up in court?
- The firm does not litigate. If a matter proceeds to litigation, it is referred to trial counsel and the firm can continue supporting the client on the related business and contractual matters.
Official sources
Consult the official sources above for current rules and procedures.