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Litigate or Mediate?

Say you’re involved in a controversy over a relative’s estate. Or you and your spouse are separating, but you don’t see eye-to-eye on a division of marital property or child custody and support. Does your business have a dispute with a customer or employee? It could be a disagreement with a neighbor or a business competitor, or a dispute about a sales contract or a product or service that doesn’t live up to expectations.

LITIGATION WARS: Problems like these can be enormously difficult to resolve fairly, but without inordinate expense. Win or lose, litigation can be unpleasant, distracting, and very costly. There is no shortage of attorneys ready to fight tooth and nail for you, to demonize your adversary, to “go for the jugular.” Unfortunately, your opponent may decide to hire the same kind of lawyer for himself. Now, how are you going to pay for all this legal mud-wrestling? If each side aims for a winning outcome at trial, months of bitter and confusing legal wrangling might leave everybody but the lawyers exhausted, dissatisfied, and impoverished. You aren’t about to just give up and give in, but, you keep thinking, there ought to be a better way. What’s the alternative?

SOME GOOD NEWS—ADR: There are alternatives: arbitration and mediation are two forms of Alternative Dispute Resolution or ADR. If both sides are willing (or, if an agreement to handle potential disputes through ADR is already in place), either arbitration or mediation may be that better way to resolve your controversy. Arbitration—often conducted by attorneys for each side—offers a simplified set of adversarial procedures leading up to a final, and usually binding, decision by a neutral arbitrator. It is a streamlined form of litigation. (More on arbitration in future issues.) In mediation, by contrast, the parties work together with a neutral third party (the mediator) to reach a compromise agreement between themselves. Mediation, because it only works with the consent of the parities, is a conciliatory, not an adversarial, process.

WHY CHOOSE MEDIATION? THE POTENTIAL BENEFITS: The challenge is to get the parties to work together constructively to resolve the points in dispute by compromise. Mediation is not a panacea, and will not work in every case. (See sidebar.) But, the potential benefits can be great. Such benefits frequently include drastically reduced expenses (save on attorneys’ fees, court costs, expert witnesses fees, presentation media, etc.), a much speedier resolution (typically just days or weeks instead of months or years of litigation), simplified methods (no rules of evidence, depositions, interrogatories, or inflexible trial procedures), and finality of results (no appeals). Since each party has voluntarily agreed to the outcome, a mediated result will probably be more durable: the chances of recriminations, reprisals, or failure to perform are substantially reduced.

CAN WE HELP MEDIATE YOUR DISPUTE? Ask us to mediate your dispute. We know the alternatives to mediation, because we litigate the same kinds of controversies that we mediate. Whether your disagreement involves contracts, commercial activities, real estate, employment, wills, torts, or family law, we know what a trial of your conflict would be like. We know because we’ve been counseling clients, and litigating their disputes in courts, for many years. We have a good idea of how much litigation might cost, how long it might take, and how frustrating it can be. We may be able to give the parties a reasonable prediction of how each side might fare in court. Finally, because of our familiarity with the legal issues involved, we will be in a better position to put together a comprehensive settlement which addresses the key issues, anticipates and resolves the most probable future difficulties, is likely to “stand up in court,” and can be readily and inexpensively enforced if one side fails to perform. Our years of experience as attorneys and advisors enhances our ability to lead parties toward sensible, efficient, lasting, and workable mediated settlements.

CALL US—WE’LL TRY TO RESOLVE YOUR PROBLEM BEFORE IT GOES TO COURT. If you see a problem coming, don’t wait. Call us, and let’s see if we can help you work out your differences without becoming part of the litigation wars and paying monstrous legal fees. There’s no charge for an initial joint consultation, and we are willing to work with all sides to make mediation of your dispute prompt, affordable and user-friendly.