ADR and Suspected Fraudulent Claims - Dispute Resolution Journal - Vol. 53, No. 3
Jeffrey Krivis is a private mediator and arbitrator in Los Angeles, and teaches mediation at Pepperdine Law School/Straus Institute for Dispute Resolution. He is also on the board of directors of the International Academy of Mediators.
Originally from Dispute Resolution Journal
Rather than tying up suspected fraud cases in the drawn-out, and often unprofitable process of litigation, the author recommends using mediation as a way to get to the heart of a case quickly and effectively. By allowing for strategic sharing of information and enabling disclosure of that information in a non-threatening environment, an investment in mediation may produce healthy rewards.
If you were a conservative investor who was looking for a modest return on your dollar, would you invest in unusual penny stocks with no track record? Of course not; the risk would be too great, though the reward, if one of the equities turned out to be the next Microsoft, could be tremendous. My sense is that most disputants are like investors; they are not looking to achieve fame and fortune in litigation, but are looking for conservative investments (risk) with reasonable returns (reward).
Recently, I had occasion to mediate a stream of disputes for a large department store, ranging from slip-and-fall to false imprisonment. Each case was unique in its own way. The one thread that seemed to run through the risk analysis of defense counsel, in which liability was seriously in question, was whether or not there were actual injuries, and if there were, were they related to the incident in question? I wondered why there was so much concern about each case. Was I so naive as to think everyone was being truthful? Then a pattern started to
emerge that was striking. Many of the claimants either did not disclose to their lawyers previous injuries which were identical to those claimed, or the lawyers were not disclosing the injuries to the other side.