There is little doubt that the economy is making litigation an impractical way to resolve disputes. The courts must are trying to encourage a paradigm shift from the adversarial system, to the problem solving approach of dispute resolution - with mediation at the top of the list. But angry disputants often want to prove they are right and want their day in court.
There are numerous new state and federal statutes and court rules requiring mediation or other forms of alternative dispute resolution. Unfortunately, there are still disputants that want to win at any cost- or would rather fight to be right than settle to be happy. After 25 years of being a lawyer and mediator, I have seen what litigation and intense conflict does to my fellow lawyers and clients who come to me to escape the courtroom battle. What does it mean to win a dispute? If one wins at the expense of one's health or wins after spending a fortune and years of lost time, business interference, or loss of time with family and friends, is it truly a win? .
WHAT IS A "WIN" AT TRIAL OR ARBITRATION?
A win at trial or arbitration means that usually the opposing party loses. The adversarial contest is over, but the dispute and rivalry persists. Collection of the judgment may be impossible. The conflict may proceed to the appellate level. Costs may be astronomical and unpaid attorneys fees may take years to be paid, if at all. Conscientious, hard-working lawyers put in painstaking hours of preparation, yet many clients not realizing the time and effort, remain unsatisfied. Statistics prove that client satisfaction after trial or arbitration is outweighed by the stress, strain, and time lost, and costliness of our adversarial system, even if there is a win.
IS THERE A WIN THROUGH POSITIONAL BARGAINING?
A settlement "win" through negotiations, just prior to trial or some major motion often occurs due to the need to avoid the high risks. Sometimes the "win" occurs because the losing party cannot afford to litigate further. This type of ending can be dissatisfying for clients since they have already expended a fortune in fees and costs in the adversary proceedings. The fight ends, but the losses are heavy, and a win for one side causes anger and frustration on the other side. So what are the results? The loser wants revenge- which can lead to insidious on-line attacks or worse yet, even violence.
WHAT IS A MEDIATION WIN?
Mediation is a problem-solving process where a trained neutral individual structures and facilitates negotiations between the parties. The mediator cannot impose a decision, nor should he or she "strong arm" a settlement. The parties, with the aid of their attorneys, propose options for settlement based upon the underlying interests supporting their positions. Since the neutral does not "judge", arguments to be used at trial are only useful to educate all as to what may occur at trial if agreement is not reached. Arguments are not the focus of the process. An experienced mediator will get to the heart of the issues to work out a deal which resolves the bases for the conflict. A highly qualified mediator will build a golden bridge between the parties and set forth a positive approach to find solutions to the conflict.
Parties usually believe in good faith that they are 100% right. The experienced mediator acknowledges the legitimacy of each perspective but shifts the focus to the parties' interests and desires which underlie the oppositional positions. All the issues are presented. The need for objective criteria and for understanding the issues is discussed. At this point, necessary information and documentation is listed. The parties, acting in good faith, and are led to stipulate to discovery.
The mediator acts as the trustee of discovery to make sure one side is not prejudiced. Once all the objective criteria is gathered (agreed upon experts can be used in the process. e.g. a forensic accountant can be used to give a range of values of a business), the parties are encouraged to brainstorm options for settlement. The alternatives are prioritized and harmonized. Then, creative negotiations continue to sift out blame and the unacceptable parts of the various alternatives.
The responsibility for satisfaction and intellectual creativity is upon the parties and their counsel. This empowering approach builds a commendable relationship between attorney and client and relieves the burden of the attorneys to fight to win every point.
We have all had the disgruntled client who cannot understand why he cannot receive everything he wanted. In mediation, the client has no reason to blame the attorney for not representing all of his or her interests because the client is there and has an opportunity to be heard and learn the pitfalls of his/her case. The client makes an informed decision.
A seasoned mediator will keep all parties calm and respectful of the proceeding. "Secret" information is discussed only in caucus (a private meeting with mediator, attorney, and client without the opposing parties) so that the attorney need not fear that he or she will be prejudiced if settlement is not achieved.
Mediation gives a chance for the lawyer and client to work in tandem to form a strategy, a resolution, in which they retain their personal power and control. In accordance with the Evidence Code, offers to compromise or admissions are strictly prohibited from disclosure in court. No agreement is binding until all sign the written settlement which must say that the parties intend for the agreement to be binding and enforceable in a court of law.
The most effective and efficient written settlement is one prepared by the mediator to assure quick closure and enforcement without delay. A win in mediation is a successful mutual gain solution for all the parties and their attorneys. The conflict ends and the parties can regain peace of mind and still have money left in their pockets- and for the attorneys - they are more likely to be paid in full.
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