There are occasions when a meeting (pre-litigation) among parties to a dispute with similar and/or opposing interests can be productive. Many contracts require parties to a dispute to “meet and confer” prior to initiating a formal claim. The purposes of such a meeting may include reviewing and discussing the issue, identifying any common interests and concerns, attempting to resolve factual disputes, and, ideally, to resolve the dispute(s).
For such meetings, there are at least four tasks to address:
- Understanding the Purpose of the Meeting and Agreement to Attend.
- Parties to a dispute are often emotionally and financially invested in their position in a way that is difficult for others to appreciate. Make sure the meeting is timely and confirm that the parties are willing to meet, in a spirit of cooperation, before trying to schedule the meeting.
- Preparation and Circulation of a Confidentiality Agreement, to be Signed at the Start of the Meeting
- In order for the parties to freely share opinions, documents, and facts, they must know and agree, in writing, to what extent, if any, what they say and share in the meeting can be used by another party, as evidence, if the dispute “goes legal.” A well-crafted Confidentiality and Non-Disclosure Agreement is recommended as a meeting prerequisite.
- Preparing and Circulation of an Agenda, to be Signed at the Start of the Meeting
- Any meeting worth holding is worth outlining with an agenda. Preparing the agenda requires you to consider the attendees, scopes, and goals of the meeting and design the agenda to meet those goals. It also puts you in control of the flow and scope of the meeting and keeps the meeting on track.
- Preparation and Circulation of any Non-Confidential Points of Agreement and Action Items, after the Meeting.
- A written follow-up report, whether formal meeting minutes or merely an email with action items and stipulations, should be issued to all attendees. This again places you in control. If a resolution was reached, a written agreement should be circulated to the parties, then signed. The agreement may be as simple as a change order that was at issue, or a marked-up drawing with written terms, as to completion and payment of the revised work.
If the dispute is not fully resolved through this process, at least the parties will have gained a better understanding of the issues and created a basis to work from, through the formal dispute resolution process.
Article by Patrick G. McNamara, Esq. in 2019. Mr. McNamara is part of Porter Law Group, Inc. in Sacramento, California, and specializes in Construction and Real Estate Litigation. www.porterlaw.com.
