Resolving Commercial Disputes Before Trial: Key Strategies for Both Sides

In many cases, it will be in both parties’ best interests to resolve commercial disputes without going to trial. Avoiding trial limits the costs of the dispute resolution process, and it can help preserve key commercial relationships that might otherwise be lost. Companies can use various strategies to pursue a favorable pre-trial resolution—the key is to work with an experienced Miami commercial litigation attorney who can provide strategic advice and representation tailored to the specific circumstances.

5 Key Strategies for Resolving Complex Commercial Disputes Without a Trial

Strategies for resolving complex commercial litigation prior to trial range from aggressively pursuing settlement to targeting a pre-trial judgment or dismissal. Here are five key examples:

1. Identifying Claims and Building Leverage

One key strategy to set the stage for an efficient and favorable resolution is to focus early on identifying claims and building leverage. By identifying all viable claims (or counterclaims), parties to commercial disputes can make informed decisions about the amount in dispute and the likelihood of success—and then use these insights to guide their next steps.

In many cases, building leverage early can help facilitate favorable settlement negotiations. If a party can not only identify all viable claims (or counterclaims), but also substantiate these claims, this can make it clear that attempting to mount a defense at trial might not be worth it. In this scenario, some amount of negotiating may be warranted, but it could also be the case that a party has enough leverage that it doesn’t need to move much off of its original position. Conversely, if both parties have strong evidence supporting their claims, this could make it clear that meeting in the middle is the best option for both sides.

2. Anticipating Claims and Formulating Defenses

In addition to identifying their claims against one another, parties facing commercial disputes should also prioritize anticipating the other party’s claims and building their defenses. This will be critical for informed decision-making as well, and seeing the dispute from both sides can provide critical insight when it comes to formulating settlement strategies and assessing the viability of taking the dispute to a verdict if necessary.

When assessing potential claims and defenses, a comprehensive and unbiased approach is essential. Overlooking potential claims or making assumptions about a company’s ability to assert a successful defense can not only lead to uninformed decision-making, but it can also lead to surprises for which the company is unprepared during the dispute resolution process.

3. Opening Negotiations Early in the Process

In many (but not all) cases, opening negotiations early can help facilitate a cost-effective pre-trial resolution. While parties may want to avoid appearing overly eager to settle, opening negotiations before a dispute evolves or the parties’ relationship deteriorates can help preserve the possibility of reaching an informal resolution without protracted litigation.

Opening negotiations is itself a strategic process. When seeking to open settlement negotiations, commercial parties must simultaneously exhibit strength and a willingness to compromise (to the extent warranted). While the parties can always revisit the possibility of negotiating a settlement at any time during the litigation, taking a strategic approach from the outset can help set the stage for efficient negotiations that avoid the need for discovery and other pre-trial procedures.

4. Using Mediation if Warranted

Many commercial contracts include mandatory alternative dispute resolution (ADR) clauses that require the parties to pursue mediation before resorting to arbitration or litigation. However, even when mediation is not contractually required, it can still be a highly effective tool for resolving commercial disputes between willing parties who are willing to consider reasonable options for reaching terms.

For mediation to work, both parties need to be willing to participate in good faith. This does not mean they need to be committed to settling. But it does mean they need to be committed to seeing the process through. This means that they should be prepared to participate in mediation until either: (i) the parties reach an agreement; or (ii) it becomes clear that reaching an agreement is not a viable outcome.

5. Leveraging the Pre-Trial Process

In many cases, it makes sense to initiate the litigation process even if the ultimate goal is a favorable resolution without going to trial. Depending on the circumstances, both parties may be able to leverage various aspects of the pre-trial process, including (but not limited to):

Discovery – In complex commercial disputes, discovery can be a substantial undertaking. The burdens and costs of responding to a counterparty’s discovery requests can be significant, and these factors alone can be enough to cause parties to consider settling. If a party may be required to disclose damaging information in discovery, this can play a significant role in that party’s approach to the parties’ dispute as well.
Pleadings and Non–Dispositive Motions – The strategic use of pleadings and non-dispositive motions can also help facilitate good-faith settlement negotiations. Alternatively, parties can use their pleadings and non-dispositive motions to set the stage for dispositive motions later in the process.
Dispositive Motions – Dispositive motions seek to resolve litigation before trial. Both parties can file dispositive motions, and the risk of an unfavorable pretrial judgment can encourage them to come to the settlement table as well. Alternatively, if a party is confident in its position, seeking a pre-trial judicial resolution could be the focus of that party’s litigation strategy from the beginning.

Again, these are just examples. Commercial disputes can be extremely complex and involve an extraordinarily wide range of issues. When facing commercial disputes, considering all potential offensive and defensive strategies is critical for targeting a favorable result as efficiently as possible.

Schedule a Call with a Miami Commercial Litigation Attorney at Gonzalez Law Offices, P.A.

If your company is facing a commercial dispute in South Florida, we invite you to contact us for more information. To speak with an experienced Miami commercial litigation attorney at Gonzalez Law Offices, P.A. in confidence, please call 305-676-6677 or inquire online today.