Every litigator faces a critical strategic decision with a new commercial case: Is this a dispute that must be adjudicated, or is it one that can—and should—be settled?
While some disputes require black-robed judges and a full trial review to establish new law or address major societal problems, a significant quantum of civil disputes can and must be resolved in a less expensive and less confrontational manner. As a mediator who sits at the intersection of attorney strategy and client reality, I can tell you that the path of least resistance is often the path of most value. Your clients want relief, and that relief is often best achieved through the economic and experiential advantages of a negotiated settlement.
Establishing New Law vs. Achieving Client Resolution
The legal system serves two main functions: resolving specific disputes and establishing public policy through precedent. The former is what most commercial clients need; the latter is a rare but necessary function of our system.
When you recognize that a case is not one where a new legal interpretation is required, your strategic mandate shifts entirely. The goal is no longer to secure a verdict, but to obtain a binding, business-sensible outcome that gets the client out of court. Many claims and cases can be resolved without the intervention of judges, juries, and the public incited by the media. Reserving the courts for criminal matters and issues concerning major societal problems is an argument for a more efficient judicial system—and an argument for using ADR on almost everything else.
Economic and Experiential Arguments for Pre-Trial ADR
The financial case for pre-trial ADR is obvious, but the experiential case for the client is equally powerful.
- Economic Advantage: You control the costs, avoiding not just trial fees, but the escalating expenses of motions practice, expert witnesses, and extended discovery. This savings is a direct, measurable win for your client’s bottom line.
- Experiential Advantage: The client is placed directly in the driver’s seat. Unlike a trial where a judge or jury imposes a binary win/loss outcome, ADR allows for creative, holistic solutions. The parties can agree on future business dealings, non-monetary concessions, or payment schedules that no court has the authority to order. This is a superior experience that leaves the client feeling heard, validated, and in control of their own future.
This confidence in recommending ADR—not as a failure, but as a sophisticated optimization strategy—is what elevates a trial lawyer to a commercial strategist.
Actionable Takeaway: The Commercial Strategist’s Guide
Before filing your next major motion, run this strategic assessment:
- The Precedent Test: Is the core dispute governed by clear, existing law? If the answer is yes, mediation should be scheduled immediately after an initial exchange of key information.
- The Business Test: What solution would allow the client to profit from the end of the dispute? Often, a structured settlement that includes future cooperation is more valuable than a one-time cash judgment.
- The Control Test: Does the client prioritize maintaining control over the outcome, or are they willing to risk a binary, all-or-nothing judgment? The former always points to mediation.
Successful trial lawyers understand that the greatest win is often the fastest, most certain, and least expensive resolution achieved through skilled negotiation and mediation.
About the Author: Ken Strongman is a private commercial mediator/arbitrator of complex, high risk litigated cases since 2004. Disputes addressed include business, securities, construction defects, real estate, intellectual property, employment, environment, energy, and trusts & estates. He is also a Mediator and Arbitrator for FINRA, past president of The Mediation Society. and instructor at UC Law San Francisco.
© 2026-27 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.
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