Frequently Asked Questions

Here are some answers to frequently asked questions about the Two-Track System.

If your question is not answered here, please feel welcome to contact us.

Why would a plaintiff want to do Two-Track?

Plaintiffs initiate a lawsuit usually to seek restitution for some wrong committed by another party, e.g., a breached contract, an injury, to collect a debt, etc.

The aim of Two-Track is to get restitution at less cost, in less time, and with less stress than litigation.

Plaintiffs can actually achieve better financial outcomes (more money goes to the plaintiff, and less to attorneys’ fees), earlier, and with less stress than in protracted litigation.

Plaintiffs also retain rights and access to the courthouse, if needed.

However, considering that 98% of all lawsuits in the United States are resolved prior to going to trail, it is highly unlikely the courthouse will make the final decision in any case.  Put another way, there is only a 2% chance that a plaintiff’s lawsuit will actually be decided by a judge or jury.

Why would defendants want to do Two-Track?

Mainly to save money in transaction costs. The traditional model—with trial attorneys in lead on both sides—results in 50-80% of financial awards going to attorneys’ fees and other transaction costs (mediation, arbitration, experts).

Also, defendants who care about long term relationships with customers (e.g., healthcare, employers, manufacturers and many others) have the opportunity to preserve long term relationships when they can offer a model for “cooperating” with employees, patients, etc., in resolving any problems, including injuries or other unanticipated outcomes.

How is Two-Track different from mediation and arbitration (ADR)?

Two-Track supports both processes. The difference is that Track 1 attorneys represent parties in mediation (collaborative process) and Track 2 attorneys represent parties in arbitration (adversarial process, like litigation).

Most important, success in Track 1 negotiations may resolve the case without either mediation or arbitration, thereby saving the parties fees and administrative time.

How is Two-Track similar to or different from Collaborative Law?

Similarities

  • Both Collaborative Law (CL) and Two-Track (TT) have roots in the English distinction between the solicitor and barrister roles for attorneys.  Collaborative Law was first designed for family law and Two-Track was first designed for professional liability and other civil cases.
  • Track 1 (negotiation attorney) is similar to CL’s “collaboration attorney.”
  • Both Collaborative Law and Two-Track focus on what some called “interests-based” negotiation to start a case, identifying the underlying needs, or interests, that are driving the dispute and crafting a resolution that will address each party’s interests.

Differences

  • Two-Track puts greater emphasis on protecting the litigation option for each party by: (a) naming Track 2 attorneys at the start; (b) providing for Track 2 consultation before settlement is final; and (c) providing for orderly transition to Track 2 attorneys, if it comes to that.
  • This solves the Collaborative Law challenge of attorney reluctance to “withdraw” from a case if it does not “settle” (Track 2 chair is already filled in the Two-Track model).
  • In Two-Track, contingency fees are used in Track 2 only; there is no such provision in Collaborative Law.

Two-Track leaves judgment on how much to disclose in Track 1 to the attorneys and the parties on each side. Collaborative Law makes “full disclosure” a requirement to enter the process.

So I hire two attorneys? How can this possibly save me money?

On the face of it, it would seem that two attorneys has to be more expensive than one. In practice, however, the opposite is true (See Prove it!).

Adding a Track 1 Negotiating Attorney reduces the time (and billable hours) spent on the most expensive part of the resolution process, namely discovery (adversarial) and trial preparation (deposing numerous experts on each side).

If the case is settled by the Track 1 attorneys, significant cost savings will result.  If the case ultimately goes to trial with a Track 2 attorney the overall cost will still likely be less than traditional litigation due to the efficiencies resulting from the Track 1 portion of the process.

What is “cooperative discovery”?

As compared to “adversarial discovery” in the context of litigation (subpoenas, frequent stalling and maneuvering in the context of pending court battle) Track 1 Negotiation Attorneys jointly decide what information to share in order to eventually negotiate settlement of the case.

For example, the Two-Track Procedures Manual provides a protocol for Track 1 attorneys to jointly choose experts, instead of each side engaging their own, which is far more expensive.

This Track 1 cooperation streamlines the discovery process. Using existing confidentiality provisions in the law–settlement conferences, mediation—information used in Track 1 cannot be subpoenaed in any subsequent court proceedings.

Can using Two-Track jeopardize chances in litigation?

Track 1 attorneys (negotiation) cooperate with their respective counterpart Track 2 attorneys (trial) to prevent this from happening. In some cases, the two attorneys on one side may withhold certain information from the Track 1 negotiation in order to save it for trial. This is unlikely, but possible within the rules.

If my case does not settle on Track 1, won’t the Two-Track process actually be more expensive?

For several reasons, likely not.

The Track 1 process will advance the case quickly to expose whether resolution is possible.

If the Track 1 process reveals that settlement is not possible, then the Track 2 attorneys can focus on winning the case, instead of the more disjointed effort of considering settlement options and trial preparation at the same time.

If the Track 2 attorneys takes over the case the issues saved for trial should be much narrower.

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