“I’ll see you in court!”
When someone has wronged you, you lawyer up and sue, and hope that a judge or jury will give you justice. Litigation is how we resolve most serious business disputes in this country. But our centuries-old adversarial system, while civil, is extremely expensive, time consuming, and often produces unsatisfactory results. Even the winning party to a lawsuit must, more often than not, still bear their own legal expenses. And, going to court is always a bit of a gamble. Even when you believe strongly in your case, there is no guarantee that you will win.
Thirty-five years ago, Chief Justice Warren Burger observed in an address to the American Bar Association:
Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people. To rely on the adversary process as the principal means of resolving conflicting claims is a mistake that must be corrected.
So, is there a better way? There is – it’s called MEDIATION.
Mediation is a process in which parties work with a neutral professional who is dedicated to helping the parties reach a mutually-agreeable resolution. A skilled mediator can facilitate settlement of even difficult disputes. Mediation typically takes only about a day, sometimes less, sometimes more, and is highly effective.
Mediation offers several advantages over litigation.
Mediation is less costly and can resolve disputes sooner. Only about one to five percent of all civil cases filed in the United States go to trial. The rest settle, sometimes on the courthouse steps, but usually only after significant time and legal fees have been spent. Mediation offers the possibility of resolving disputes sooner, even before the dispute ripens into a lawsuit, or well in advance of trial in litigated matters. Earlier resolution means less legal fees.
Mediation works. According to the American Arbitration Association, 85 to 90 percent of cases that go to mediation settle. Even cases where the parties are seemingly worlds apart can be resolved in mediation with a capable mediator.
Mediation gives the parties control. In court, the parties have no decision making power. The judge and/or jury decide everything, so each side bears a risk of losing the case or of coming away with a less than satisfactory decision. In mediation, the parties have all the power and can craft a resolution that suits both sides. Neither side has to agree to a resolution that they are not willing to accept.
Mediation effects a conclusion faster because there is no appeal. In litigation, the losing party can always file an appeal, which can prolong the case for an additional year or more after the trial. Once a mediation is complete, any resolution reached is final.
Mediation is confidential. Court proceedings are public. Mediation is confidential. This fosters more open communication, which allows the parties to explore all options for settling their disputes without fear of having their words used against them in court.
Mediation provides a neutral professional whose job it is to facilitate settlement. A lawyer’s job in litigation is to be a zealous advocate for the client. To reach a mutually-agreeable settlement the parties need a different skill set and a different mindset. This is where a mediator can provide value. A skilled mediator, working with the parties and their attorneys, can help the parties craft a settlement that they may not have been able to achieve on their own.
Mediation allows for resolutions not available in court. Courts are generally limited to awarding damages or providing for injunctive or declaratory relief. In mediation, the parties are free to explore all possible options based on their particular circumstances and interests. There are no limits. Parties can consider creative solutions that a court could never impose, including solutions that may allow them to continue, and even improve, their business relationship.
While mediation is routinely used in family law, it is woefully underutilized in business disputes, or used only after the parties have exhausted most of their litigation resources. Mediation is an alternative that business people should consider at all stages of a dispute, including before a lawsuit is filed and, in litigated matters, at all times before trial. It’s never too late to mediate.
Bernard C. Barmann, Jr. is a mediator, business litigator and a partner in Kuhs & Parker, a Bakersfield law firm.